JAN - 8 2016 - Amoachi & Johnson, Attorneys at Law, PLLC

.. U.S. Department of Justice. Executive Office for Immigration Review

Falls Church, Virginia 22041

File: - Hartford, CT

In re:

IN REMOVAL PROCEEDINGS

APPEAL

Decision of the Board of Immigration Appeals

Date: JAN - 8 2016

ON BEHALF OF RESPONDENT:

APPLICATION: Asylum; withholding of removal; protection under the Convention Against Torture

The respondent, a native and citizen of Albania, has filed a timely appeal from the Immigration Judge's March 13, 2008, decision denying her application for asylum and vdthholding of removal and her request for protection under the Convention Against Torture. The record vdll be remanded.

In his decision, the Immigration Judge found the respondent's testimony credible. She testified that at birth her grandfather promised her in marriage to a cousin she has never met. She was informed of this promise when she was in eighth grade, and was to marry when she was

years old. The respondent further testified that she tvdce came to the United States as a teenager, first in 2002 for a poetry symposium and the second time in 2003 to assist her aunt v.ith a new baby. Tr. at 22, 46. She has not departed since the 2003 entry. She states that she fears returning now to Albania because she and possibly other family members would be harmed if she refuses to enter into the arranged marriage. The respondent does not assert that she suffered past persecution.

The respondent's uncle and a great-uncle also testified at the respondent's hearing. They corroborated the respondent's testimony that she was promised in marriage to a cousin, that her father wants her to return to fulfill the promise, and that they believe she could be harmed if she does not do so. Tr. at 72, 90.

The Immigration Judge found the testimony and evidence presented to be consistent and to support the claim that arranged marriages are practiced in parts of Albania, that violence can result from them, that violence against women is vddespread in Albania, and that there have been instances of"honor killings." l.J. at 9-10. He found that the respondent has a subjective fear of persecution. Id. Although he expressed doubts about the reasonableness of the respondent's fears, he concluded that the fears were not unfounded and found that she had established a wellfounded fear of future persecution. l.J. at 10. However, he concluded that the respondent had not shown that the harm she fears is on account of her membership in a particular social group or any other protected ground.

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Since the time of the respondent's hearing, the Board has issued several decisions addressing the issue of particular social group. See }<fatter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) (clarifying what is required to establish a particular social group); Matter of A-R-C-G-. 26 l&N Dec. 388 (BIA 2014) (discussing particular social group in the context of cases involving domestic violence). See also generally Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014). These decisions may have an impact on the respondent's case, and warrant a remand. On remand, the parties should be given the opportunity to present additional evidence and arguments regarding particular social group and nexus, as they may apply to this case, as well as any other issues that may now be relevant to this case.

Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings consistent Vlith this opinion, and for the entry of a new decision.

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U.S. Department of Justice Ex~cutive Office for Immigration Review


File: York, PA

In re:


APPEAL

Decision of the Board oflmmigration Appeals

Date: JAN - 7 zm~


ON BEHALF OF DHS: Brian G. McDonnell Assistant Chief Counsel

The Department of Homeland Sec\Jr:ity (DHS) has appealed from the Immigration Judge's February 6, 2009, decision granting the respondent's application for asylum. We find no clear error in the factual findings of the Immigration Judge, and given the totality of the facts and circumstances presented here, we will uphold the Immigration Judge's decision. See Matier of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (discussing particular social group in the context of cases involving domestic violence). Accordingly, the appeal will be dismissed and the record will be remanded solely for the required security checks.

ORDER: The appeal of the Department of Homeland Sec\Jr:ity is dismissed.

FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the Department of Homeland Sec\Jr:ity the opportunity to complete or update identity, law enforcement, or sec\Jr:ity investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. § 1003.47(h).

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U.S .. Department of Justice Executive Office for Immigration Review

Decision of the Board oflnnnigration Appeals

·Falls Church, Virginia 22041

File: - New York, NY Date:

In re:


APPEAL


ON BEHALF OF DHS: Andrea Cerrito Assistant Chief Counsel

JAN 2 7 2G15


The Department of Homeland Security (DHS) has appealed from the Immigration Judge's April 9, 2009, decision granting the respondent's application for asylum. We find no clear error in the factual findings of the Immigration Judge, including the credibility finding, and given the totality of the facts and circumstances presented here, we will uphold the Immigration Judge's decision on the application of asylum. Accordingly, the appeal will be dismissed and the record will be remanded solely for the required security checks.

ORDER: The appeal of the Department of Homeland Security is dismissed.

FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the Department of Homeland Security the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. § 1003.47(h).

FOR THE BOARD

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l\S. Department of Justice Executive Office for Immigration Review

Falls Church, Virginia 2204 l

File: - New York, NY

In re:


APPEAL


Date: jAN 1 5 2a16


ON BEHALF OF DHS: Elizabeth A. Gross Assistant Chief Counsel

APPLICATION: Asylum

The Department of Homeland Security (DHS) has filed a timely appeal from the Immigration Judge's June 17, 2009, decision granting the respondent's application for asylum. The appeal will be dismissed.

The respondent claims that she was abused in Honduras by her domestic partner. The Immigration Judge found the respondent's claim credible, found that her asylum application was timely given the circumstances presented, and concluded that she suffered persecution and had a well-founded fear of persecution on account of a protected ground. On appeal, the DHS argues that the asylum application was not timely filed and that extraordinary circumstances did not excuse the untimely filing, that the respondent was not credible, and that the respondent did not show that she suffered persecution or that she has a well-founded fear of future persecution on account of a protected ground.

Initially, we will uphold the determination that the respondent's asylum application should not be denied as untimely. Given the respondent's age ( when she entered the United States, and given the clearly poor representation provided by her then-authorized representative, we find that extraordinary circumstances excused the fact that she filed her asylum application approximately 6 months after the I-year filing deadline. See section 208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C. § l 158(a)(2)(D). Moreover, we find no clear error in the factual findings of the Immigration Judge, including the ruling on credibility, and given the totality of the facts and circumstances presented here, as well as intervening relevant case law, we will uphold the Immigration Judge's decision. See Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (discussing particular social group in the context of cases involving domestic violence). Accordingly, the appeal will be dismissed and the record will be remanded solely for the required security checks.

ORDER: The appeal of the Department of Homeland Security is dismissed.

FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the Department of Homeland Security the opportunity to complete or update identity, law enforcement, or security investigations or

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examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. § 1003.47(h).

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U.S. Department of Justice Executive Office for Immigration Review



File: - San Francisco, CA Date:

In re:


APPEAL

ON BEHALF OF RESPONDENTS:

ON BEHALF OF DHS: J. Franklin Sigal Assistant Chief Counsel

JAN 2 7 201ff


The respondents, a mother and her daughter, are natives and citizens of Nicaragua. They have filed a timely appeal from the Immigration Judge's November 24, 2009, decision denying their applications for asylum and withholding of removal, and their requests for protection under the Convention Against Torture. The record will be remanded.

The Immigration Judge found credible the lead respondent's testimony that she suffered abuse at the hands of her half-brother, and found that the abuse rose to the level of persecution. The Immigration Judge, however, concluded that the respondents had not shown that that any past or future harm was or would be inflicted on account of political opinion, membership in a particular social group or any other protected ground.

Since the time of the respondents' hearing, the Board has issued several decisions addressing the issue of particular social group, including the issue whether domestic violence can form the basis for an asylum or withholding of removal claim. See Matter of A-R-C-G-, 26 l&N Dec. 388 (BIA 2014) (discussing particular social group in the context of cases involving domestic violence), see also Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) (clarifying what is required to establish a particular social group). These decisions may have an impact on the respondents' case, and warrant a remand. On remand, the parties should be given the opportunity to present additional evidence and arguments regarding particular social group and nexus, and any other issues relevant to this case, including, if necessary, the question whether the lead respondent was in a domestic relationship with her abuser.


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ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with this opinion, and for the entry of a new decision.

FOR THE BOARD

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File: - San Francisco, CA Date:

In re:


APPEAL


ON BEHALF OF DHS: J. Franklin Sigal Assistant Chief Counsel

JAN 2 7 201ff


The respondents, a mother and her daughter, are natives and citizens of Nicaragua. They have filed a timely appeal from the Immigration Judge's November 24, 2009, decision denying their applications for asylum and withholding of removal, and their requests for protection under the Convention Against Torture. The record will be remanded.

The Immigration Judge found credible the lead respondent's testimony that she suffered abuse at the hands of her half-brother, and found that the abuse rose to the level of persecution. The Immigration Judge, however, concluded that the respondents had not shown that that any past or future harm was or would be inflicted on account of political opinion, membership in a particular social group or any other protected ground.

Since the time of the respondents' hearing, the Board has issued several decisions addressing the issue of particular social group, including the issue whether domestic violence can form the basis for an asylum or withholding of removal claim. See Matter of A-R-C-G-, 26 l&N Dec. 388 (BIA 2014) (discussing particular social group in the context of cases involving domestic violence), see also Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) (clarifying what is required to establish a particular social group). These decisions may have an impact on the respondents' case, and warrant a remand. On remand, the parties should be given the opportunity to present additional evidence and arguments regarding particular social group and nexus, and any other issues relevant to this case, including, if necessary, the question whether the lead respondent was in a domestic relationship with her abuser.


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FOR THE BOARD

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~ . U.S. Department of Justice Executive Office for lrnn1igrat1on Review

Falls Church. Virginia 22041

File: • Hartford, CT

In re:


APPEAL

Decision of the Board of Imm 1gration Appeals

Date: DEC 3 1 2015


ON BEHALF OF OHS: Amit Patel Assistant Chief Counsel

APPLICATION: Asylum; withholding ofremoval; protection under the Convention Against Torture

The respondent. a native and citizen of Honduras, has filed a timely appeal from the Immigration Judge's April I. 2010, decision denying her application for asylum and withholding of removal, and her request for protection under the Convention Against Torture. The record will be remanded.

The Immigration Judge found the respondent to be credible regarding the abuse she suffered from an individual in Honduras. However, he concluded that the respondent had not shown that the harm she suffered was inflicted on account of her membership in a particular social group or other protected ground.

Recently. the Board has issued several decisions addressing the issue of particular social group. See Matter of M-E-V-G-, 26 l&N Dec. 227 (BIA 2014), and Matter of W-G-R-. 26 I&N Dec. 208 (BIA 2014) (clarifying what is required to establish a particular social group): Maller of A-R-C-G-. 26 I&N Dec. 388 (BIA 2014) (discussing particular social group in the context of cases involving domestic violence). These decisions may have an impact on the respondent's case. and warrant a remand. On remand, the parties will have the opportunity to present further evidence and arguments regarding the issues of particular social group and nexus, as well as other relevant issues. as they may apply to this case.

On remand, the parties should also address the issue whether the respondent was actually in a domestic relationship with her abuser, and the Immigration Judge should make clear findings on this issue. We note in this regard that the Immigration Judge described the respondent as having been kidnapped and as the victim of a criminal scheme. The respondent's testimony indicates that although she was taken away by her abuser, she eventually moved in with him, though apparently out of fear. The parties may also address on remand the issue whether the Honduran authorities can and will protect her, if necessary.

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•. Accordingly, the following order will be entered.

ORDER. The record is remanded to the Immigration Judge for further proceedings consistent with this opinion, and for the entry of a new decision.

FORTHEBO~

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Falls Church, Virgm1a 22041

File: - Houston, TX

In re:


APPEAL

Decision of the Board of lmm1grat1on Appeals

Date: DEC 3 1 2015


ON BEHALF OF DHS: Catherine Lavery Assistant chief Counsel


The respondent, a native and citizen of Honduras, has filed a timely appeal from the Immigration Judge·s August 3, 2010, decision denying her application for asylum and withholding of removal and her request for protection under the Convention Against Torture. The record will be remanded.

In her decision, the Immigration Judge found credible the respondent's claim that she was abused as a child by her mother's partner, who was living with the family. However, he concluded that the respondent had not shown that she was harmed was on account of her membership in a particular social group or any other protected ground.

Since the time of the respondent's hearing. the Board has issued several decisions addressing the issue of particular social group, including the question whether domestic violence can form the basis for an asylum claim. See Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014). and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) (clarifying what is required to establish a particular social group); Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (discussing particular social group m the context of cases involving domestic violence). These decisions may have an impact on the respondent's case, and warrant a remand. On remand, the parties should be given the opportunity to present additional evidence and arguments regarding particular social group and nexus, as they may apply to this case, as well as any other issues that may now be relevant to this case.


ORDER· The record is remanded to the Immigration Judge for further proceedings consistent with this opinion, and for the entry of a new decision.

~JARDJJ~

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U.S. Department of·Justice Executive Office for Immigration Review


File: - Los Angeles, CA

In re:


APPEAL


Date: J.A.N 2 7 Z015


ON BEHALF OF DHS:


The respondent, a native and citizen of Honduras, filed a timely appeal from the Immigration Judge's September 23, 2010, decision denying his application for asylum and withholding of removal, and for protection under the Convention Against Torture. The record will be remanded.

The Immigration Judge found the respondent credible regarding the abuse he suffered as a young child, including, at the age of witnessing the murder of his mother, at the hands of the mother's domestic partner. The Immigration Judge indicated that domestic abuse might in some situations form the basis for an asylum claim. However, the Immigration Judge found that the respondent in this case did not in any event have an objectively reasonable fear of future persecution because the events in question took place 25 years before the hearing, and the respondent was now an adult.

On appeal, the respondent argues that he should be found eligible for a grant of asylum under Matter of Chen, 20 I&N Dec. 16 (BIA 1989), and that the Immigration Judge foreclosed him from fully presenting his case relating to a possible Chen grant. In view of the overall facts of this case, the development of relevant case law,1 and the need for further fact-finding, we will remand the record to the Immigration Judge for further consideration of the respondent's appli.:ation for asylum.

1 Although the Immigration Judge mentioned particular social group in his decision, he did not discuss the issue, as he found no objective fear of future persecution. Since the time of the respondent's hearing, the Board has issued several decisions addressing the issue of particular social group. See lv/atter of A1-E-V-G-, 26 I&N Dec. 227 (BIA 2014), and Matter offf!-G-R-, 26 I&N Dec. 208 (BIA 2014) (clarifying what is required to establish a particular social group); Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (discussing particular social group in the context of cases involving domestic violence). The application of these cases to the respondent's case may be addressed on remand, if necessary. ·

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I Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings consistent Vllith this opinion, and for the entry of a new decision.

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U.S. Department of Justice Exe~utive Office for Immigration Review



In re:


APPEAL

ON BEHALF OF RESPONDENT: Pro se

ON BEHALF OF DHS: Danielle Dussek Assistant Chief Counsel


Date: JAN 2 D 2016


The respondent, a native and citizen of Ecuador, has filed a timely appeal from the Immigration Judge's October 25, 2010, decision denying her application for asylum and withholding of removal, and her request for protection under the Convention Against Torture. The record will be remanded.

In his decision, the immigration Judge found credible the respondent's claim that she was abused by her father. However, he concluded that the respondent had not shown that she was harmed on account of her membership in a particular social group, her political opinion, or any other protected ground.

Since the time of the respondent's hearing, the Board has issued several decisions addressing the issue of particular social group, including the question whether domestic violence can form the basis for an asylum claim. See Matter of M-E-V-G-, 26 l&N Dec. 227 (BIA 2014), and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) (clarifying what is required to establish a particular social group); Matter of A-R-C-G-, 26 l&N Dec. 388 (BIA 2014) (discussing particular social group in the context of cases involving domestic violence). These decisions may have an impact on the respondent's case, and warrant a remand. On remand, the parties should be given the opportunity to present additional evidence and arguments regarding particular soda! group and nexus, as they may apply to this case, as well as any other issues that may now be relevant to this case.


FOR THE BOARD

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In re:


APPEAL


Date:

JAN 2 f 2015


APPLICATION: Asylum; withholding ofremoval; protection under the Convention Against Torture; cancellation ofremoval

The respondent, a native and c1t1zen of Mexico, has filed a timely appeal from the Immigration Judge's March 30, 2011, decision denying her application for asylum and withholding of removal, her request for protection under the Convention Against Torture, and her application for cancellation of removal. The record will be remanded.

The respondent claims that she was abused by her father as a child and the Immigration Judge found those claims credible. In his decision, the Immigration Judge denied asylum because the respondent had not filed her application within 1 year of her arrival in the United States. He denied withholding of removal based on his conclusion that the respondent had not shown that the harm suffered was inflicted on account of her membership in any claimed particular social group or any other protected ground, nor had she shown a likelihood of future persecution on account of a protected ground. He also found that the respondent had not shown that the Mexican authorities were unable or unwilling to protect her, or that she could not have safely relocated to another part of Mexico.

We turn first to the Immigration Judge's finding that the respondent's asylum application was time-barred. The respondent entered the United States in l 995 at the age of but did not file her asylum application until 2005. As pointed out by the Immigration Judge, the respondent waited years to file her application even after she turned We have considered the arguments made by the respondent on appeal, but agree with the Immigration Judge that there were no changed or extraordinary circumstances excusing the untimely filing of her asylum application. Under the circumstances presented, we find no basis for reversing the Immigration Judge's decision that the respondent is ineligible for asylum for failure to timely file the application. See section 208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C. § l 158(a)(2)(D).

We tum next to the application for withholding of removal. Since the time of the respondent's hearing, the Board has issued several decisions addressing the issue of particular social group, including the question whether domestic violence can ever form the basis for an asylum claim. See Jv!atter o.f-lvf-E-V-G-, 26 I&N Dec. 227 (BIA 2014), and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) (clarifying what is required to establish a particular social group); Matter of A-R-C-G-. 26 l&N Dec. 388 (BIA 2014) (discussing particular social group in the context of cases involving domestic violence). These decisions may have an impact on the respondent's case, and warrant a remand.

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On remand, the parties should be given the opportunity to present additional evidence and arguments regarding particular social group and nexus, as they may apply to this case. They may also further address the question whether the government was unable or unwilling to protect the respondent, and whether she could have safely relocated, taking into consideration that the respondent was a child living with her family when the abuse occurred. We note that if the respondent is found to have suffered past persecution on ac.count of a protected ground, and it is found that the government was unable to un.,,,'illing to protect her, her claim regarding future persecution should be considered consistent with 8 C.F.R. § 1208.16(b)(l); see also Matier of A-R-C-G-, supra, at 395. Finally, the respondent will also have the opportunity on remand to again seek cancellation of removal or any other relief from removal for which she may be eligible.

Accordingly, the following order vvill be entered.

ORDER: TI1e record is remanded to the Immigration Judge for further proceedings consistent with this opinion, and for the entry of a new decision.

FOR THE BOARD

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U.S. Department of Justice Decision of the Board of Immigration Appeals • Executi~e Glffice for Immigration Review


File: - Orlando, FL Date:

In re:

IN ASYLUM AND/OR WITHHOLDING PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF APPLICANT:

ON BEHALF OF DHS: YonAlberdi Assistant Chief Counsel

APPLICATION: Withholding of removal; continuance

J ~ •. r.tl

The applica!1t, a native and citizen of Honduras, appeals the Immigration Judge's October 28, 2013, decision denying his request for a continuance. The Department of Homeland Security ("OHS") filed a Motion for Summary Affirmance.

We subsequently requested supplemental briefing from both parties to address whether the applicant has established good cause for a continuance. In response to our request for supplemental briefing, the applicant filed a supplemental brief incorporating the arguments he made in his appeal brief. The DHS filed a motion to remand in lieu of a supplemental brief. In its motion, the DHS requests that we remand proceedings to the Immigration Judge. The applicant has not opposed the DHS's motion to remand. See 8 C.F.R. § 1003.2(g)(3). Accordingly, the following orders will be entered.

ORDER: The motion to remand is granted.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent vl'ith the foregoing opinion and entry of a new decision.

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, U.S. Department 11f Justice Executive Offic.e for Immigration Review

Decision of lhe Board of Immigration Appeals

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File: - New York. NY Date:

In re:


APPEAL


CHARGE:

Notice: Sec. 237(aXl)(B), l&N Act [8 U.S.C. § 1227(aXl)(B)) -In the United States in violation oflaw

JAN - 5 2016

APPLICATION: Asylum; withholding of removal; Convention Against Torture

The respondent is a native and citizen of Nepal. In a decision entered on December 2, 2013, the Immigration Judge held that the respondent established eligibility for withholding of removal through submission of corroborating evidence and his credible testimony regarding past persecution at the hands of Maoists on account of political opinion (l.J. at 2-3, 13; Tr. at 18-22, 42; Exh. 4, Tab F). On the other hand, the Immigration Judge detennined that the respondent's asylum application was untimely and he did not demonstrate eligibility for an exception to the time bar (l.J. at 9-13). See section 208(a)(2)~B) of the Immigration and Nationality Act, 8 U.S.C. § l 158(aX2)(B); 8 C.F.R. § 1208.4(aX2)(i). The respondent's appeal of this decision will be sustained and the record will be remanded.

The Board reviews an Immigration Judge's findings of fact for clear error. 8 C.F.R. § 1003.l(d)(3)(i). We review issues of law, discretion, or judgment de novo. 8 C.F.R. § 1003.l(d)(3)(ii).

The respondent was a well known professional singer in Nepal. The Immigration Judge found that when the respondent came to the United States in 2007, he bad already suffered past persecution on account of political opinion in the form of a severe beating by Maoists on

, 2005, following release of an album including a song he performed that urged Maoists to stop killing innocent people (l.J. at 2-3, 12-13; Tr. at 18-22, 42). This beating was sufficient for the respondent to establish eligibility for asylum based on his individual circumstances (l.J. at 12-13). Therefore, the Immigration Judge concluded that a 2010 incident in which Maoists came to the respondent's house inquiring about the respondent and attacked the

1 The respondent does not dispute that he filed his asylum application on February 28, 2011, more than I year after his December 16, 2007, arrival in the United States (l.J. at I, 5; Tr. at 2; Exhs. 1-2).

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respondent's wife and daughter did not trigger the time bar exception based on changed circumstances (l.J. at 11-12: Tr. at 30-32; Exh. 4, Tabs D-E). See 8 C.F.R. § 1208.4(a)(4)<i)(A).

We agree with the respondent that the 20 I 0 incident constituted changed circumstances materially affecting his eligibility for asylum, even though he had personally suffered past persecution on account of political opinion 3 years earlier (I.J. at 12). In that regard, we adopt the interpretation of the "changed circumstances" regulation by the Ninth Circuit in Vahora v. Holder, 641 F.3d 1038, 1043-47 (9th Cir. 2011), that changed circumstances .. materially affecting the applicant's eligibility for asylum" include new circumstances that materially strengthen an applicant's claim, even if it is determined later on that the applicant had a viable claim without the changed circumstances. See id. at I 044 ("An applicant is not required to file for asylum when his claim appears to him to be weak; rather, he may wait until ... new facts make it substantially more likely that his claim will entitle him to relief'); see also Mandebvu v Holder, 755 F.3d 417, 426-28 (6th Cir. 2014)(following Vahora). Therefore, we reverse the holding that the respondent has not established eligibility for the exception to the time bar under 8 C.F.R. § 1208.4(a)(4)(i).2

Since the respondent has qualified for withholding of removal, he has necessarily shown eligibility for asylum, which carries a lower burden of proof (l.J. at 8). See Vanegas-Ramirez v. Holder, 768 F.3d 226, 237 (2d Cir. 2014). We also conclude that the respondent has demonstrated that he merits asylum in the exercise of discretion. See id.

Accordingly, the following orders are entered.

ORDER: The appeal is sustained, the denial of asylum is vacated, and the respondent is found eligible for and deserving of this form of relief.

FURTHER ORDER: Pursuant to 8 C.F.R. § l003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the Department of Homeland Security the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. § 1003.47(h).

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2 As a result, we need not address the respondent's remaining arguments concerning the applicability of the time bar exceptions based on changed circumstances and extraordinary circumstances ( l.J. at I 0-13 ).

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U.S. D.epartment of Justice Executive Office for Immigration Review


File: - San Francisco, CA

In re:


APPEAL


Date: JAN - 7 2u15


CHARGE:

Notice: Sec. 212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. § l 182(a)(7)(A)(i)(I)] -Immigrant - no valid immigrant visa or entry document

APPLICATION: Asylum; withholding ofremoval; Convention Against Torture

The respondent, a native and citizen of India, appeals the Immigration Judge's November 20, 2013, decision, denying his application for asylum and withholding of removal under sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 123l(b)(3), and his request for protection under the Convention Against Torture ("CAT"), 8 C.F.R. §§ 1208.16-.18. The appeal will be sustained in part, and the record will be remanded.

We review an Immigration Judge's findings of fact, including findings regarding witness credibility, under a "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including issues of law, judgment or discretion, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii). Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012); see also Matter ofZ-Z-0-, 26 I&N Dec. 586 (BIA 2015). As the respondent's asylum application was filed after J\.1ay IL 2005, it is governed by the provisions of the REAL ID Act.

The respondent, who lived in the Punjab, claims he has been harmed by Sikhs because of his activities on behalf of the Dera Sacha Sauda ("DSS") (l.J. at 4; Tr. at 43-44). The respondent testified that on 2010, he was forced off his scooter by four persons he identified as members of the Damdami Daksal, an extremist Sikh group, and the Shiromani Akali Dal ("SAD") (l.J. at 4; Tr. at 46-4 7, 52). He was kicked and beaten, and told to stop following the DSS or they would kill him (1.J. at 4; Tr. at 49-50). The respondent and his father went to the police station to report the incident, but the police refused to take the report (Tr. at I.J. at 4; 50-51). On 2011, he was stopped by a car containing six or seven persons who shouted at him, saying they had told him not to support the DSS, and who then beat him with wooden sticks and a bat (I.J. at 4-5; Tr. at 58-59). The respondent and his father attempted to file a complaint, but the police again refused to take the complaint (l.J. at 5; Tr. at 61-62). The respondent departed India in 2011 (Tr. at 64).

In this case, the Immigration Judge has not provided sufficient reasons for finding that the respondent was not credible and, therefore, her adverse c.redibility finding is clearly

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erroneous (I.J. at 8-11). See 8 C.F.R. § 1003. l(d)(3)(i). In rendering her adverse credibility finding, the Immigration Judge pointed to perceived changes in the respondent's if_.stimony (I.I. at 10). For example, the Immigration Judge found the basis for the respondent's claim for relief had changed during his testimony, from first claiming that the radical Sikhs who attacked him did not support the DSS and were members of the opposing political party, to his later testimony that his fear was not based on his political opinion (I.J. at 10). However, we do not find any inconsistencies in these statements; the respondent's claim that the radical Sikhs who attacked him were also SAD members is not inconsistent with his later testimony which indicates only that his primary fear was based on his religion and that his fear from SAD was secondary. As explained by the respondent below, he did not support any political party, but as DSS members did not work for the SAD party they were viewed as the opposition (Tr. at 54 ).

The Immigration Judge also based her adverse credibility detem1ination on alleged inconsistencies between the respondent's testimony and documentation submitted in support of his claim (l.J. at 9). The Immigration Judge observed that 'Witness statements from the respondent's father, his wife, a neighbor, and a friend indicate he was first attacked by radical Sikhs on 2010, while the respondent testified that he was attacked on

20 I 0 (I.J. at 9; Tr. at 46, 73; Exh. 9). According to the Immigration Judge, the respondent's earlier testimony that all of the affidavits had been prepared together was inconsistent with his later explanation as to why the dates differed with his testimony (I.J. at 9). However, we find the Immigration Judge misunderstood the respondent's earlier testimony when he attempted to explain the discrepancy between his testimony and the original affidavits regarding the date of his first attack. While the respondent testified that he thought the original affidavits may have been prepared together, he stated repeatedly that he really did not know why the dates were different, that it could have been problems with the preparer, bnt that he was just guessing (Tr. at 73-77). We are satisfied with the respondent's explanation on appeal, as corroborated by an affidavit from the preparer of his wife's original affidavit, attributing the inconsistency in dates to a translation error based on the conversion of Bikrami calendar dates to Georgian calendar dates (Respondent's Br. at 4; Exh. 17 at A).

The Immigration Judge also based her adverse credibility determination on an alleged inconsistency between the respondent's testimony about injuries he suffered and a medical document submitted in support of that claim (l.J. at 9-10; Exh. 9, at E). In describing his injuries, the respondent testified that after being beaten he had "blue marks" on his back and all over his body (Tr. at 60. 89). When asked on cross-examination why the letter from the doctor stated he had internal injuries, the respondent explained it was described as an internal injury after he told the clinic that he had pain in his joints (Tr. at 90). We do not find the reference in the medical document to the respondent being "injured internally" inconsistent with his description of suffering "blue marks" all over his body and pain in his joints. See Paramasamy v. Ashcroft, 295 F.3d 1047, 1052 (9th Cir. 2002) (rejecting adverse credibility finding based on "perceived inconsistencies not based on the evidence").

Finally, we are unconvinced that the only other bases for the adverse credibility finding, demeanor and lack of detail, are sufficient to support an adverse determination (l.J. at 9-10). In regards to the respondent's demeanor, the Immigration Judge does not elaborate or point to any specific examples of the respondent's "nonsensical, confusing explanations," or when he was

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unresponsive to questions (l.J. at 9). In the absence of such specific analysis we conclude that the Immigration Judge's finding in this regard is not a valid basis upon which to find the respondent not credible. See Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir. 2003) (requiring that a demeanor-based negative credibility finding must specifically and cogently refer to the non-credible aspects of the applicant's demeanor). Further, while the Immigration Judge found the respondent's testimony vague and lacking in detail about such aspects of his claim as the attacks he experienced, we are satisfied that he provided adequate details (see Tr. at 43-59). Based on the foregoing, we cannot find that the Immigration Judge's adverse credibility determination is adequately supported by the record and vacate her credibility finding as clearly erroneous. See 8 C.F.R. § 1003. l (d)(J)(i).

The Immigration Judge also bases her decision denying relief upon the alternative finding that the respondent "has not shown that he cannot relocate to another part of India" (l.J. at 11 ). However, where, as is the case here, the res~ondent's credible testimony has established past persecution on account of a protected ground, a presumption that he has a well-founded fear of future persecution arises which shifts the burden of proof to the Department of Homeland Security ("DHS") to demonstrate by a preponderance of the evidence that the respondent can reasonably relocate internally in India. See 8 C.F.R. §§ 1208.13(b)(l)(i)(B), 1208.16(b)(l)(i)(B); see also 8 C.F.R. § 1208.13(b)(3)(ii) (where the government is the persecutor, or the applicant has established persecution in the past, it is presumed that internal relocation is not reasonable, unless the DHS establishes by a preponderance of the evidence that it would be reasonable for the applicant to relocate). See A1atter of D-1-M-, 24 I&N Dec. 448, 449-50 (BIA 2008); see also Matter of M-Z-M-R-, 26 I&N Dec. 28 (BIA 2012). Accordingly, a remand for a reassessment of the respondent's ability to relocate is appropriate.

The Immigration Judge also should reassess the respondent's eligibility for protection under the Convention Against Torture, in view of the holding set forth above that may be pertinent to that form of relief. The parties should be provided with an opportunity to update the record, if necessary.

ORDER: The appeal is sustained in part, and the record is remanded for further proceedings in accordance with the foregoing opinion, and the entry of a new decision.

FR"ii'lE B ARD~

1 We point out that, if deemed credible, the Immigration Judge implicitly found (and we concur) t11at, considered cumulatively, the incidents the respondent experienced rose to the level of persecution. In discussing relocation, the Immigration Judge addressed whether the respondent would suffer "other serious harm," I.J. at 12. See 8 C.F.R. §1208.13(b)(iii)(B).

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U.S. Department of Justice Executive Office for lrnn!igration Review



File: Orlando, FL Date:

In re:


APPEAL


CHARGE:

Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] -In the United States in violation oflaw

JAN - 6 2016


The respondent, a native and citizen of Egypt, appeals the Immigration Judge's November 27, 2013, decision denying the respondent's applications for asylum, withholding of removal, and protection under the Convention Against Torture. See sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, l231(b)(3); 8 C.F.R. §§ 1208.13, 1208.16-1208.18. The record will be remanded.

The Board reviews an Immigration Judge's findings of fact, including credibility determinations and the likelihood of future events, under a "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i); }.fatter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015). We review· all other issues, including questions of law, judgment, or discretion, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii). The respondent's applications were filed after May 11, 2005, and therefore are governed by the provisions of the REAL ID Act. Matter ofS-B-, 24 I&N Dec. 42 (BIA2006).

Because the record contains indicia of incompetency, we will remand for the Immigration Judge to make further inquiry to determine whether the respondent is competent for purposes of immigration proceedings. See Matter of M-A-M-, 25 l&N Dec. 474 (BIA 2011). In his oral decision, the Immigration Judge acknowledged "extreme problems communicating with the respondent" and the existence of documents in the record indicating the respondent suffers from post-traumatic stress disorder, severe depression, insomnia., difficulty concentrating and payin~ attention to tasks, a head injury with hearing loss, and stomach cancer (l.J. at 9; Exh. 3, Tab G). However, the Immigration Judge did not assess the respondent's competency pursuant to Matter of M-A-M-, supra. See also Matter of J-R-R-A-, 26 I&N Dec. 609 (BIA 2015) (holding

1 We note that the respondent submitted documents to the Board on appeal that may be relevant to his credibility and mental competency. On remand the Immigration Judge shall permit the parties to present these documents and any other relevant evidence or testimony.

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that if an applicant for asylum has competency issues that affect the reliability of his testimony, the Immigration Judge should, as a safeguard, generally accept his fear of harm as subjectively genuine based on the applicant's perception of events).

We will remand the record so that the Immigration Judge may conduct the inquiry into the respondent's mental competency in accordance with the framework outlined in :Matter of M-A-M-, supra. If the Immigration Judge finds that the respondent is competent and the removal proceedings can proceed without safeguards, he should specify the reasons for that decision. Should the Immigration Judge determine that the respondent lacks competency, he should identify and apply appropriate safeguards and conduct a new hearing implementing those safeguards. }..fatter of Nf-A-M-, supra; Matter of J-R-R-A-, supra. In either case, the Immigration Judge should reconsider the respondent's applications for relief, particularly in light of country conditions evidence, and issue a new decision.


ORDER: The record is remanded to the Immigration Judge for further proceedings consistent

with tJm onk< Mdfoc tho mtry::r: j FORTHPRD

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,. iJ.S. Department of Justice Executive Office for Immigration Review



File: - Los Angeles, CA Date: JAN 2 7 2016

Jnre:


APPEAL


APPLICATION: Asylum

The respondent appeals from an Immigration Judge's decision dated December JO, 2013, denying his application for asylum under section 208(b)(l)(A) of the Immigration and Nationality Act, 8U.S.C.§l158(b)(l)(A). 1 The Department of Homeland Security has not filed a response to the appeal. The respondent's request for a waiver of the filing fee associated with the filing of an appeal is granted. 8 C.F.R. § 1003.8(a)(3). The appeal will be dismissed in part, sustained in part, and the record remanded for further proceedings.

We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. § J003.l(d)(3)(ii). The respondent's application for relief was filed after May 11, 2005, and is thus subject to the statutory amendments made by the REAL ID Act of2005 (l.J. at 8-9; Exh. 2). Matter of S-B-, 24 I&N Dec. 42 (BIA 2006).

The respondent is a native and citizen of the People's Republic of China (China). He claims persecution based on his religious beliefs and practices (Exh. 2, Part B, #1 ). The Immigration Judge found that although the respondent provided credible testimony, he did not satisfy his burden of proof as it relates to his claim for relief from removal (I.J. at 10-12).

The Immigration Judge's findings of fact support her conclusion that the respondent did not show that his single incident with the authorities in China rose to the level of persecution (I.J. at 10-11; see also Tr. at 71-83, 111, 116-18). The police arrested and detained the respondent for 3 days. During the detention, he was kicked and beaten, including once being forced to maintain a certain position for 30 minutes. He was released on the third day after his father paid

1 The respo11dent does not meaningfully challenge the denial of his withholding of removal and Convention Against Torture claims, and thus, we deem these claims waived on appeal. Matter of R-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012) (when a respondent fails to substantively appeal an issue addressed in an Immigration Judge decision that issue is waived before the Board).

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a fine, and thereafter, he had to sign a guarantee letter and was required to report to the police station (IJ. at 4-5; Tr. at 71-83).

While the respondent's treatment was lamentable, considered cumulatively, it did not amount to persecution. The respondent's case is similar to other cases in which the Court of Appeals for the Ninth Circuit has affirmed that past persecution was not established. See Gu v. Gonzales, 454 F.3d 1014, 1019-21 (9th Cir. 2006); Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003); Prasadv. INS, 47 F.3d 336, 339-40 (9th Cir. 1995). Similar to the individuals in Gu and Prasad, the respondent was "unable to show more than a single, isolated encounter with the authorities," Gu v. Gonzales, supra, at 1020, during which he suffered treatment that was not "so overwhelming" as to amount to persecution, Prasad v. INS, supra, at 339. For example, in Gu v. Gonzales, supra, at I 020, the court held that the alien did not establish past persecution when he was detained and beaten on one occasion, but did not suffer injuries that required medical attention. Similarly, in Prasad v. INS, supra, at 339, the court held there was no persecution where alien was detained and beaten, but did not require medical treatment.

The respondent's appellate contention that his case is "readily distinguishable from Gu v. Gonzales," is not persuasive (Resp. Br. at 11). The Ninth Circuit has held that not all forms of discrimination, mistreatment, or even infliction of harm amounts to persecution. See, e.g., Halim v. Holder, 590 F.3d 971, 975-76 (9th Cir. 2009) (harassment, including arrests and beatings, did not amount to persecution); Wakkary v. Holder, 558 F.3d 1049, I 059-60 (9th Cir. 2009) (discrimination, including robbery, beatings, and being accosted by a threatening mob did not amount to persecution); but see Guo v. Ashcroft, 361F.3d1194, 1197-98, 1203 (9th Cir. 2004) (finding that persecution established where alien detained twice, for 1 1/2 days and 15 days, during which he was hit and kicked, forced to do pushups, hit with an electrically-charged baton, and beaten with a plastic pole while tied to a chair).

Although the respondent was mistreated, was subject to reporting requirements and a 10,000 RMB fine, and was subsequently dismissed from college, he did not suffer serious physical injury or any further harm after he was released (l.J. at 11). The respondent was not harmed to the level experienced in Guo. The Immigration Judge considered all of the respondent's experiences as presented at the hearing, including the respondent being forced to maintain "the flying airplane" position" (1.J. at 11; Resp. Br. at 14; Tr. at 74-78). Thus, we conclude that his claim is similar to Gu, Prasad, Halim, and Wakkary. Accordingly, we affirm the Immigration Judge's finding the respondent's past mistreatment did not cumulatively rise to the level of persecution. 8 C.F.R. § 1208.13(b)(l). The respondent's appeal will therefore be dismissed insofar as it challenges the Immigration Judge's determination concerning past persecution.

The Immigration Judge's decision does not explicitly address whether the respondent has a well-founded fear of future persecution. Given the Board's limited fact-finding ability, a remand to the Immigration Judge is warranted for further fact-finding and analysis of the respondent's well-founded fear of future persecution claim. See Matter ofS-H-, 23 l&N Dec. 462 (BIA 2002). On remand, the Immigration Judge should determine the likelihood of persecution if the respondent is removed to China, whether the respondent could avoid future persecution by relocating to another part of China and whether, under all the circumstances, it would be reasonable to expect him to do so. The parties may supplement the record with additional

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evidence and arguments as deemed appropriate by the Immigration Judge. We express no opinion on the merits of the respondent's claims for relief. See .Matter of L-0-G-, 21 I&N Dec. 413 (BIA 1996).

Accordingly, the following orders will be entered.

ORDER: The respondent's appeal is dismissed insofar as it challenges the Immigration Judge's determination concerning past persecution.

FURTHER ORDER: The respondent's appeal is sustained insofar as it challenges the Immigration Judge's determination concerning well-founded fear of future persecution.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

3

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'. U.S. Department of Justice Executive Office for Immigration Review

'



File: Los Angeles, CA Date:

Inre:


APPEAL


CHARGE:

Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] -In the United States in violation of law (sustained)

JAN - 7 2G16

APPLICATION: Asylwn; withholding of removal; Convention Against Torture

The respondent, a native and citizen of China, appeals from the decision of the Immigration Judge, dated January 9, 2014, denying his applications for asylwn and withholding of removal pursuant to sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 123l(b)(3), and protection under the Convention Against Torture. See 8 C.F.R. §§ 1208.16-.18. The appeal will be sustained in part and the record will be remanded.

We review the findings of fact made by the Immigration Judge, including the determination of .::redibility, for clear error. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including questions of judgment, discretion, and law, de novo. 8 C.F.R. § 1003.l(d)(3)(ii). The respondent's application for relief, which was filed after May 11, 2005, is governed by the Amendments made to the Act by the REAL ID Act. See Matter of S-B-, 24 I&N Dec. 42 (BIA2006).

The respondent claims he has been harmed in the past, and will be harmed again in the future, on account of his political opinion. Specifically, the respondent claims that he opposed the Chinese government's attempt to utilize eminent domain to take his family's property. The respondent claims that he believed the taking was unfair and that he communicated this sentiment to Chinese authorities (I.J. at 2-3). When he did not vacate the property by the 2004, deadline for doing so, Chinese authorities appeared at the residence, forced the respondent and his fatnily out, and destroyed the building. The respondent claims that he and other affected people in the community petitioned local officials to redress their grievances on multiple occasions. When these efforts were unsuccessful, the respondent and others began preparing a written petition and obtaining signatures with the intention of delivering it to Chinese officials in Beijing (I.J. at 6-7). However, before this plan could be effectuated, the respondent was arrested by Chinese authorities. The respondent claims to have been held for 5 days during which time he was questioned and physically mistreated (l.J. at 8-9). The Immigration Judge denied the respondent's application for relief, concluding that the respondent was not credible and that he therefore did not submit sufficient evidence to meet his burden of proof (I.J. at I 0-17).

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' We find clear error in the Inunigration Judge's adverse credibility finding. Under the REAL

ID Act, an Immigration Judge may base a credibility determination on any inaccuracies or falsehoods in the applicant's statements without regard to whether they go to the heart of the applicant's claim. See section 208(b)(l)(B)(iii) of the Act. The Immigration Judge may consider any relevant factor that when evaluated in light of the totality of the circumstances can reasonably be said to have a bearing on the witness's veracity. Ren v. Holder, 648 F.3d 1079, 1084 (9th Cir. 2011) (citing Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010)). However, · trivial inconsistencies that have no bearing on a witness's veracity should not form the basis of an adverse credibility determination. Id.

First, we find clear error in the Inunigration Judge's finding that the respondent's credibility is undermined by inconsistencies in his testimony regarding whether he submitted written petitions to Chinese authorities (l.J. at 10-11 ). Our review of the record indicates that the respondent's testimony on this point is not inconsistent. The respondent testified that he and other affected people "petitioned" local authorities before and after the destruction of the residences. The Inunigration Judge clearly perceived the respondent to mean written petitions. However, there is no basis in the respondent's testimony to support this conclusion. Rather, the respondent testimony is most accurately understood as attempting to communicate that he and others physically went to speak with local authorities regarding their grievances (Tr. at 116-22). The respondent also consistently testified that he and others began preparing a written petition with signatures with the intent of taking it to Chinese officials in Beijing, but the plan did not come to fruition because the respondent and others were arrested (Tr. at 127-28). In sum, the respondent consistently testified that he and others verbally petitioned local authorities regarding the taking of their property and that they began preparations to present a written petition to officials in Beijing, but were unable to do so due to the intercession of Chinese authorities. Thus, we find clear error in the Immigration Judge's determination that the respondent's credibility is undermined by his testimony on this point.

Second, we find clear error in the Immigration Judge's finding that the respondent's credibility is undermined by his inconsistent testimony regarding when he began residency at the building that was eventually demolished (I.J. at 11-12). In light of the passage of time between the approximate time the residency allegedly began in the late 1980's or early 1990's and the respondent's testimony in 2013, we do not find the respondent's inability to recall exactly when he moved to meaningfully undermine the respondent's credibility. We therefore find the Inunigration Judge's finding to the contrary clearly erroneous.

Third, we find clear error in the Immigration Judge's determination that the respondent's credibility is undermined by an inconsistency between the respondent's testimony, wherein he claimed to have resided at the building until it was destroyed on 2004, and the household registry document, which indicates he lived at that address until 2004 (l.J. at 12). The record does not contain any evidence regarding the accuracy of Chinese household registration documents. Thus, the Inunigration Judge's reliance on such a document to find the respondent not credible is speculative, and therefore clearly erroneous. See Kaur v. Ashcroft, 379 F.3d 879, 887-88 (9th Cir. 2004) (holding that the Immigration Judge's belief that the Indian government would not issue a misspelled passport was speculative and insufficient to support an adverse credibility detemrination), superseded by statute on other grounds, REAL ID Act of

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2005, Pub.L. No. 109-13, 119 Stat. 231 (citations omitted); see also Chen v. Bd of Immigration Appeals, 461 F.3d 153, 156 (2d Cir. 2006) (reversing adverse credibility finding where the Immigration Judge did not identify any evidence concerning how Chinese government officials assign or change identification numbers, nor any evidence to indicate that fraud was more likely than bureaucratic mistake).

Fourth, we find the Immigration Judge's findings relating to the respondent's arrest speculative and therefore clearly erroneous (l.J. at 15). The record does not contain any evidence regarding the methodology of Chinese law enforcement. Nor does the record contain any evidence regarding what efforts Chinese authorities expended attempting to locate the respondent until they were actually able to do so. Thus, the Immigration Judge's fiuding in this regard is speculative and therefore clearly erroneous. See Chawla v. Holder, 599 F.3d 998, 1004-05 (9th Cir. 2010) (rejecting adverse credibility determination based on conjecture and speculation); Zhou v. Gonzales, 437 F.3d 860, 865 (9th Cir. 2006) (holding that an Immigration Judge's disbelief of an applicant's testimony did not support an adverse credibility finding because the disbelief was "based on speculation and conjecture about Zhou's position in Chinese society and what someone in that position would or would not do."); Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000) (refusing to "[u]phold an adverse credibility finding that rests on conjecture and speculation.").

Fifth, we find the Immigration Judge's findings relating to the relocation notice and the bail receipt clearly erroneous (l.J. at 12-13, 16-17). The record does not contain any information regarding how the referenced documents are produced, what information is typically included, or the accuracy of the information. In the absence of such information, the Immigration Judge's assessment of these documents relating to the respondent's credibility is speculative. Kaur v. Ashcroft, supra, at 887-88.

Sixth, we find clearly erroneous the Immigration Judge's determination that the respondent's credibility is undermined by his inconsistent testimony regarding whether he or his wife actually owned the property that was destroyed (l.J. at 12). We do not find it remarkable that the respondent would consider himself the owner of the property given the length of time he resided there with his spouse. While he may not have had formal title to the property, we do not find his credibility meaningfully undermined by his claim that he owned the property under the circumstances presented in this case.

In light of our determination that the Immigration Judge's adverse credibility finding is clearly erroneous, we conclude that remand for additional consideration of the respondent's application for relief is appropriate. 1 The respondent's testimony in this regard may be sufficient to sustain his burden of proof without corroboration, but only if .he satisfies the Immigration

1 We acknowledge that the Immigration Judge also found that the respondent proffered insufficient corroborative evidence. However, the Immigration Judge did not determine whether the respondent's corroborative evidence would suffice if his testimony were to be treated as credible. See section 208(b)(l)(B)(ii) of the Act, discussed infra.

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Judge that his testimony is persuasive, and refers to specific facts sufficient to demonstrate that he is a refugee. Section 208(b)(l)(B)(ii) of the Act; Ren v. Holder, supra, at 1090-94. However, "[w]here the [Immigration Judge] determines that the [respondent] should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the [respondent] does not have the evidence and cannot reasonably obtain the evidence." Section 208(b)(l)(B)(ii) of the Act.

Thus, on remand, (1) the lmmigration Judge should explicitly determine ifthe respondent's testimony relating to the events he claims occurred in China is persuasive, and refers to specific facts sufficient to meet his burden of proof without the need to provide corroborative evidence (in addition to the corroboration that the respondent has already submitted); (2) if the lmmigration Judge determines that additional corroboration of the respondent's testimony relating to these events is appropriate, the lmmigration Judge should provide advance notice to the respondent of such requirement, and after the respondent has had a sufficient opportunity to comply under the standards applicable in the United States Court of Appeals for the Ninth Circuit, the Immigration Judge should determine whether the respondent has submitted reasonably obtainable corroborating evidence or provided a sufficient reason for not doing so. Ai Jun Zhi v. Holder, 751 F.3d 1088, 1094-95 (9th Cir. 2014); Ren v. Holder, supra, at 1092. Finally, the Immigration Judge should issue a new decision considering whether the respondent has met his burden of proof in light of the submission of any requested corroborating evidence, or the lack of such evidence and any accompanying explanation, and issue a new decision. 2

In assessing whether the respondent met his burden of proof, the Immigration Judge should explicitly consider whether he established a well-founded fear of persecution based on a showing that he experienced persecution in the past on account of a ground protected under the Act or, alternatively, whether he established a well-founded fear of persecution based on a reasonable possibility of being persecuted on account of a ground protected under the Act upon his return to China. See section 208(b)(l)(B)(i) of the Act; Parussimova v. Mukasey, 555 F.3d 734, 740-41 (9th Cir. 2009) (stating that the REAL ID Act requires that a protected ground represent "one central reason" for an asylum applicant's persecution); Matter of C-T-L-, 25 I&N Dec. 341 (BIA 2010) (holding that absent a showing that a protected ground would be a "central reason" for the claimed past or future harm, the respondent cannot establish eligibility for either asylum or withholding ofremoval).

The Immigration Judge also should apply the pertinent legal standards for assessing the merits of the respondent's application for withholding of removal under section 24l(b)(3) of the Act and his claim for protection under the Convention Against Torture. The parties shall be permitted to supplement the record with additional evidence in the remanded proceedings. Accordingly, the following orders will be entered.

2 Alternatively, if the lmmigration Judge detennines that the respondent's testimony and other evidence relating to the events in China are sufficient to meet his burden of proof without the need to submit additional corroborating evidence, the Immigration Judge should explicitly so state, and provide the rationale for arriving at that conclusion in a new decision.

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,/

ORDER: The respondent's appeal is sustained in part. I FURTHER ORDER: The record is remanded for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

~LL&

5

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' U.S. Department of Justice Executive Office for Inunigration Review


File: Las Vegas, NV

In re:


APPEAL


CHARGE:


Date: JAN - 7 2016

Notice: Sec. 237(a)(l)(C)(i), I&N Act [8 U.S.C. § 1227(a){l)(C)(i)] -Nonimmigrant - violated conditions of status


The respondent timely appeals the Immigration Judge's January 23, 2014, decision finding that the respondent did not meet her burdens of proof for asylum and withholding of removal under sections 208 and 241 (b )(3) of the Immigration and Nationality Act ("Act"), 8 U.S.C. §§ 1158 and 123 l(b)(3), and protection under the Convention Against Torture. 1 The Department of Homeland Security has not submitted a brief on appeal. The record will be remanded.

The respondent, a native and citizen of China, claims that she was persecuted in the past and has a well-founded fear of persecution because of her participation in an underground Christian church in China. The Immigration Judge found that the respondent's asylum application lacked credibility and was insufficiently corroborated. We review findings of fact, including adverse credibility findings, under the "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). See also Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015). We review all other issues de novo. 8 C.F.R. § 1003.l(d)(3)(ii).

The Immigration Judge's adverse credibility finding rests upon an onuss1on in the respondent's asylum application, implausibilities, and inconsistencies between the respondent's testimony and her corroborating evidence (I.J. at 3-6). The respondent sufficiently explained several inconsistencies and discrepancies on appeal. For example, the respondent explained that although she obtained an F-1 visa and had plans to study in the United States, she decided to travel to the United States early because she was arrested and beaten for participating in an underground church (Respondent's Brief at 2). The Immigration Judge's finding that the timing of events indicates a lack of credibility is based upon impermissible speculation (I.J. at 3). Additionally, the Immigration Judge questioned the respondent's description of underground

1 The Immigration Judge's decision was originally issued on September 19, 2012. Due to a clerical error, the Immigration Judge reissued the decision on January 23, 2014, to provide the respondent the opportunity to timely appeal the Immigration Judge's decision.

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church attendance as "risky" instead of "illegal" (l.J. at 3; 67, 69). The Immigration Judge opined that the respondent was in a position where she reasonably should have known that the activity was illegal (I.J. at 3). This appears to be an issue of semantics more than an issue of credibility. The respondent testified that through her conversations with others, she learned that underground church attendance was "risky," but that she was unaware that attendance could lead to arrest (Tr. at 67). While we understand the Immigration Judge's concerns, the respondent's testimony is not inherently implausible. Section 208(b)(l)(B)(iii) ("Considering the totality of circumstances, and all relevant factors, a trier of fact may base a credibility determination on ... the inherent plausibility of the applicant's ... account).

Further, the respondent sufficiently explained that she did not include in her asylum application that she was beaten by inmates during her detention in China because she was better able to explain the more specific details of her arrest through testimony (I.J. at 4; Tr. at 43; Respondent's Brief at 5). In general a violent attack is not a minor detail in a claim of past persecution; however, the beating in question refers to an attack by inmates, not Chinese government officials, and the respondent has not claimed that the prison guards allowed, encouraged, failed to stop, or engaged in the beating. Thus, the respondent's decision to leave the attack off of her asylum application was reasonable. The Immigration Judge further found the respondent's testimony that the police made the churchgoers "stand" was inconsistent with her written statement that the police made the churchgoers "squat" (l.J. at 4; Tr. at 71). Considering the passage of time since the respondent's arrest in the totality of circumstances, we find this inconsistency too minor to support an adverse credibility finding. Finally, the Immigration Judge's concerns regarding how the respondent left China are based upon speculation (l.J. at 4 ). Inasmuch as the discrepancies were sufficiently explained we conclude that the adverse credibility finding is clearly erroneous. 8 C.F.R. § 1003.l(d)(3)(i).

Based on the foregoing, we will remand the record to the Immigration Court for further findings as to whether the respondent has met her burden of proof. Although the Immigration Judge previously considered the respondent's corroborative evidence, that analysis was enmeshed with the adverse credibility finding which we have found to be clearly erroneous (l.J. at 5). On remand, the Immigration Judge should determine whether any additional corroboration is required and if so, whether such corroboration is reasonably obtainable. See 8 U.S.C. § 1158(b)(l)(B)(ii) (credible testimony alone, without corroboration, may be sufficient to sustain burden of proof). The respondent will also be given an opportunity to explain any problems found with her corroborating evidence.

Additionally, the Immigration Judge did not reach findings such as past persecution and well-founded fear. Inasmuch as past persecution is an issue that must be decided by the Immigration Judge in the first instance and prediction as to future events is a factual finding, we will remand the record to the Immigration Court for the Immigration Judge to make those findings. Matter of D-1-M-, 24 l&N Dec. 448 (BIA 2008) (finding that the Immigration Judge must make a specific finding that the applicant has or has not suffered past persecution); Matter of Z-Z-0-, supra. Further, the Immigration Judge should independently assess the respondent's well-founded fear of persecution claim based upon her church attendance in the United States. On remand, the Immigration Judge should also address the respondent's

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withholding of removal and protection under the Convention Against Torture claims. The parties should be permitted to present additional evidence on remand.

ORDER: The appeal is sustained and the record is remanded to the hnmigration Court for further factual findings and legal analysis consistent with this decision.

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. U.S. Department of Justice Decision of the Board of Immigration Appeals Executive Office for Immigration Review


File: - Los Angeles, CA Date: JAN 2 7 2li16

In re:


APPEAL



The respondent has appealed from the January 27, 2014, decision of the Immigration Judge denying the respondent's application for asylum, withholding of removal, and for protection under the Convention Against Torture ("CAT"). 1 Sections 208(b)(l)(A) and 241(b)(3) of the Immigration and Nationality Act ("Act"), 8 U.S.C. §§ 1158(b)(l)(A), 123l(b)(3); 8 C.F.R. §§ 1208.16(c)-1208.18. The Department of Homeland Security ("DHS") did not file an opposition to the respondent's appeal. The appeal will be dismissed in part, sustained in part, and the record will again be remanded for further proceedings.

We review for clear error the fmdings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. § 1003.l(d)(3)(ii).

The procedural history of this matter is as follows. On October 26, 2005, the Immigration Judge rendered an adverse credibility finding, and denied the respondent's claims for relief and protection from removal. By decision dated May 21, 2007, the Board dismissed the respondent's appeal. In an order issued on 2010, the United States Court of Appeals for the Ninth Circuit granted the respondent's petition for review. The court held that the adverse credibility finding was not supported by the record, and it remanded the case "for further proceedings to determine whether, taking [the respondent's] testimony as true, he is eligible for asylum, withholding of removal, or CAT relief." On April 29, 2011, we vacated our prior decision dated May 21, 2007, and remanded the record to the Immigration Judge for reconsideration of the respondent's application for asylum, withholding of removal, and protection under the CAT. On January 27, 2014, the Immigration Judge found "once more that [the] respondent is not credible, and he has not met his burden of proof of establishing eligibility

1 The Immigration Judge stated at the conclusion of the hearing held on January 27, 2014, that "the previous decision dated October 26, 2005, is incorporated herein, with the additional evidence and findings and conclusions provided here today" (l.J. at 47).

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·

for asylum" (LJ. at 2). The Immigration Judge also concluded that the respondent did not satisfy his burden of proof as it relates to eligibility for CAT protection (l.J. at 5-6).

On appeal, the respondent challenges the Immigration Judge's adverse credibility determination and asset'ts that he established past persecution and a well-founded fear of future persecution as he was mistreated by Chinese government officials on account of his religion.

We affirm the Immigration Judge's alternative determination that even assuming the respondent presented a credible claim, the harm described by the respondent considered cumulatively does not rise to the level of persecution under the Act (l.J. at 5). See Gu v. Gonzales, 454 F.3d 1014 (9th Cir. 2006). There is no clear error in the Innnigration Judge's factual findings O.J. at 5). 8 C.F.R. § 1003.l(d)(3)(i). The Immigration Judge found that the respondent testified that he was interrogated and harmed once during his 10 day detention. Further, the Immigration Judge found that the respondent testified that he was interrogated for approximately one hour, that he was slapped and pushed up against a wall, that he suffered a bloody nose, that he did not require medical treatment, and that he was fired from his job on the same day of his release from detention (l.J. at 5; October 7, 2005, hearing, Tr. at 17-24, 26). Considered cumulatively, and assuming the respondent presented a credible claim, such harm does not rise to the level of persecution under the Act. Id. The respondent's appeal will therefore be dismissed insofar as it challenges the Immigration Judge's determination concerning past persecution.

We also conclude that a remand is appropriate. See Matter of S-H-, 23 I&N Dec. 462 (BIA 2002). Although the Immigration Judge found that the respondent "applied for asylum on September 24, 2002," she erroneously concluded that "his application comes within the provision of the REAL ID Act of 2005" (I.J. at 2). We disagree. The REAL ID Act amendments apply to all applications for relief filed on or after the effective date of enactment, May 1 I, 2005. Matter of S-B-, 24 I&N Dec. 42 (BIA 2006). It is the date of the application for relief that governs. Id. As the respondent's asylum application was filed on September 24, 2002, the pre-Real ID Act provisions govern this case. See Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1132, n.10 (9th Cir. 2007). Therefore, the record v.':ill be remanded for the Innnigration Judge to apply the correct legal standard in the first instance.

Given the Board's limited fact-finding ability, a remand to the Innnigration Judge is warranted for further fact-finding and analysis of the respondent's well-founded fear of future persecution claim and his claim for protection from removal. See Matter ofS-H-, 23 I&N Dec. 462 (BIA 2002). The Immigration Judge's reconsideration of the respondent's well-founded fear of future persecution claim and his claim for protection under the CAT should be in accordance with the court's order dated , 2010. On remand, the parties should have the opportunity to submit updated evidence relevant to the respondent's applications for relief and protection from removal.

Accordingly, the following orders shall be entered.

ORDER: The respondent's appeal is dismissed insofar as it challenges the Innnigration Judge's January 27, 2014, decision relating to past persecution.

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FURTHER ORDER: The respondent's appeal is sustained insofar as it challenges the Immigration Judge's .January 27, 2014, decision relating to well-founded fear of future persecution.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings in accordance with the court's order, and for the entry of a new decision.

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File: - Baltimore, MD

Dec1s1on of the Board of lmmigrallon Appeals

Date: Jt..~~ 1 9 2015

In re:


APPEAL


APPLICATION: Asylum

The respondent, a native and citizen of Cameroon, appeals an Immigration Judge's decision dated January 29, 2014, which denied her application for asylum under section 208(b)(l)(A) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. § l l 58(b)(I )(A), in the exercise of discretion.' The Department of Homeland Security has not responded to the appeal. The appeal will be sustained, and the record will be remanded for the required background and security checks.

We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. § 1003.l(d)(3)(ii). Since the asylum application was filed after May 11. 2005, it is governed by the provisions of the REAL ID Act. Maner ofS-B-, 24 l&N Dec. 42 (BIA 2006).

This case was initially before the Board on March 8, 2012, on appeal from an Immigration Judge·s decision of November 10, 2009, denying asylum, withholding of removal, and protection under the CAT. The Board remanded the record noting that the Immigration Judge could not rely solely on an adverse credibility finding when the alien presented independent evidence to corroborate her account.

Upon our de novo review, we will reverse the Immigration Judge's determination to deny the respondent's application for asylum in the exercise of discretion (l.J. at 3-6, 8-9). See section 208(b)(I) of the Act; 8 C.F.R. § 1208.14(a). In denying asylum, the Immigration Judge found that the respondent was not credible, and that her testimony about her alleged arrest in 2005 was discrepant with documentary evidence she submitted (l.J. at 3-6, 8-9). See Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (an adverse credibility finding must be supported by specific, cogent reasons which can include inconsistent statements, contradictory evidence, and inherently improbable testimony).

1 The Irnrnigration Judge granted the respondent withholding of removal under section 24l(b)(3)(A} of the Act, 8 U.S.C. § l 23 l(b)(3)(A), and did not rule on her request for protection under the Convention Against Torture. The parties have not challenged these findings on appeal. The parties have therefore waived any further consideration of these matters.

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However, even if we were to find no clear error in the Immigration Judge's finding, it would be insufficient to deny asylum in the exercise of discretion. An alien who has established a well-founded fear of persecution, should be granted asylum absent egregious adverse factors. Mauer of Pu/a, 19 l&N Dec. 467, 474 (BIA 1987). Given the Immigration Judge's finding of past persecution in this case, the falsehoods identified by the Immigration Judge are an insufficiently "egregious" adverse factor to outweigh the danger of persecution in this case. Furthermore, the Immigration Judge did not cite to the totality of the circumstances or to the respondent's positive factors in determining whether a favorable exercise of discretion was warranted (Resp. Br. at 16-17). See Mauer of Pu/a, supra, at 473. Thus. we conclude the respondent merits asylum in the exercise of discretion. The record will be remanded for the limited purpose of updating background checks.


ORDER: The appeal is sustained and the respondent is eligible for asylum under section 208 of the Act.

FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the OHS the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. § 1003.47(h).

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File: Newark, NJ Date: JAN - 5 201ff In re:


MOTION


APPLICATIONS: Reopening; remand

This case was last before us on March 28, 2013, when we denied the respondent's third motion to reopen her removal proceedings. On , 2014, the United States Court of Appeals for the Third Circuit vacated our order and remanded the case to us for further consideration of the evidence presented in support of the respondent's asylum claim, which is based on the enforcement of the family planning policies in China. v. Attomey General of United States, (3d Cir. 2014).

In view of the court's decision, and the fact that it has now been over 15 years since the last hearing in this case, we will reopen these proceedings and remand the record to the Immigration Judge for a further hearing consistent with the court's decision. On remand, the parties may present any updated evidence regarding the respondent's application for asylum based on the population control policies in China, or any other relief from removal for which the respondent may be eligible. Accordingly, the following order will be entered.

ORDER: The respondent's motion to reopen is granted and the record is remanded to the Immigration Judge for further proceedings consistent with this opinion and for the entry of a new decision.

FOR THE BOARD

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Dec1S1on of the Board of Immigrauon Appeals


File: - Baltimore, MD Date:

In re:


APPEAL


ON BEHALF OF OHS: Mary C. Lee Assistant Chief Counsel

CHARGE:

Notice: Sec. 212(a)(7)(A)(i)(I), l&N Act (8 U.S.C. § I 182(a)(7)(A)(i)(l)] -Immigrant - no valid immigrant visa or entry document


JAN I I 2016

The respondent, a native and citizen of China, appeals from the Immigration Judge's February 24, 2014, decision. In that decision, the Immigration Judge denied the respondent's applications for asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158, and withholding of removal under section 241 of the Act, 8 U .S.C. § 1231, as well as protection under the Convention Against Torture. The record will be remanded.

On appeal, the respondent argues that the Immigration Judge's adverse credibility finding is clearly erroneous. The respondent contends that he established past persecution and a well-founded fear and clear probability of persecution in China on account of his religion. The respondent further contends that the Immigration Judge erred in finding that he did not establish eligibility for protection under the Convention Against Torture.

We find that the Immigration Judge's adverse credibility finding is clearly erroneous (l.J. at 8-10). 1 See 8 C.F.R. § l003. l(d)(3)(i); see also Matter ofS-H-, 23 I&N Dec. 462. 464-65 (BIA 2002). The Immigration Judge found that it was implausible that the respondent, who had attended an underground church only three times, would decide to leave China based upon an arrest and beatings and that the respondent would not apply for a visa to come to the United States rather than paying $80,000 to a snakehead (l.J. at 8-9: Tr. at 27-30, 40). However, we find the Immigration Judge· s general sense of disbelief is not, in the absence of speci fie evidence to justify such an attitude, a sufficient ground for making an adverse credibility finding.

1 Since the respondent's asylum application was filed in 2013. it is governed by the provisions of the REAL ID Act (Exh. 7).

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See Lm-Jian v. Gonza/e5, 489 F.3d 182, 189 (4th Cir. 2007) (holding that speculation, conjecture, and unsupported personal opinion are insufficient reasons to discount an alien's testimony). Similarly. the Immigration Judge found that it was implausible that the respondent would not have asked his sister about her experience in a government sanctioned church (l.J. at 9-10; Tr. at 36-40) However, we again find that that this was impennissible speculation. Id.

Additionally, to the extent that the Immigration Judge detennined that the respondent did not submit sufficient corroboration to meet his burden of proof, he did not detennine whether additional corroboration was reasonably available (l.J. at 9). We therefore find that remand of proceedings is warranted for the Immigration Judge to detennine whether the respondent sufficiently corroborated his claim under the criteria set forth in section 208(b){l)(B)(ii) of the Act. including an explicit detennination as to whether any requested corroboration is reasonably available. 2 Because we find that remand of proceedings 1s warranted based on the aforementioned reasons, we need not address whether the respondent is eligible for protection under the Convention Against Torture.


ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion.

2 If the Immigration Judge detennines that the respondent sufficiently corroborated his claim, he should detennine whether or not the respondent suffered past persecution or otherwise has a well founded fear.

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\


Falls Church, Virginia 2204 I

File: - Buffalo, NY

In re:


APPEAL


Date: JAN - 8 ZG16


ON BEHALF OF DHS: Michele Henriques Assistant Chief Counsel

CHARGE:

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § l 182(a)(6)(A)(i)] -Present without being admitted or paroled

APPLICATION: Asylum; \\>ithholding of removal; Convention Against Torture

This case was last before us on July 26, 2013, when we remanded proceedings to the Immigration Judge for the entry of a new decision pursuant to a , 2006, order of the United States Court of Appeals for the Second Circuit (the "Second Circuit"). On February 27, 2014, the Immigration Judge denied the respondent's applications for asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158, and withholding of removal under section 24l(b)(3) of the Act, 8 U.S.C. § 123l(b)(3), as well as protection under the Convention Against Torture. The respondent now appeals from the Immigration Judge's February 27, 2014, decision. The record will be remanded.

On appeal, the respondent argues that the Immigration Judge erred in finding that she did not testify credibly or otherwise meet her burden of proot: Specifically, the respondent contends that she established past persecution and a well-founded fear and clear probability of persecution in China on account of her Falun Gong activities. The respondent also argues that the Immigration Judge erred in determining that she did not establish eligibility for protection under the Convention Against Torture.

We find that the Immigration Judge's adverse credibility finding is clearly erroneous (l.J. at 13-14). 1 See 8 C.F.R. § 1003.l(d)(3)(i); see also Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007). In the Immigration Judge's February 27, 2014, decision, he incorporated by reference the reasons for his adverse credibility finding in the decision before the Second

1 Since the respondent's asylum application was filed in 2002, it is not governed by the REAL ID Act (Exh. 2).

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Circuit's remand (l.J. at 13). Specifically, the Immigration Judge fom1d that the respondent indicated in her asylum application that she had never belonged to or been associated with any C1fganization or groups and that she had never been accused, charged, arrested, or detained in China, which was inconsistent with her testimony that she belonged to Falun Gong and that authorities threatened her because of her Falun Gong activities (I.J. at 4, 13; Tr. at 55, 58-60; Exh. 2). However, we find that this is not a clear inconsistency because although the respondent responded in the negative to those questions in her asylum application, she submitted a personal statement with her asylum application that was consistent with her testimony about her Falun Gong activities (Exh. 2). Moreover, although the Immigration Judge questioned the respondent's credibility because she did not file for asylum immediately upon entering the United States, we find that this is insufficient to support the adverse credibility finding (I.J. at 4). Furthermore, although the Immigration Judge found that the respondent's "meritless" motions to reopen, the denials of which were affirmed by the Board, "weakened" her credibility, we find this insufficient to support the adverse credibility finding (l.J. at 13).

Because we find clear error in the Immigration Judge's adverse credibility finding for the aforementioned reasons, we find it necessary to remand proceedings to the Immigration Judge to determine in the first instance whether the respondent established past persecution and a well-founded fear (for asylum) or clear probability (for withholding of removal) of persecution in China on account of her Falun Gong activities. See 8 C.F.R. § 1003.l(d)(3)(iv) (providing that, subject to certain exceptions not applicable to the present case, "the Board will not engage in factfinding in the course of deciding appeals").


ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

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.. U.S. Department of Justice Execut_ive Office for Immigration Review



In re:


APPEAL


CHARGE:


Date: JAtl 2 I W15

Notice: Sec. 237(a)(l)(C)(i), I&N Act [8 U.S.C. § 1227(a)(l)(C)(i)] -Nonimmigrant - violated conditions of status


The respondent, a native and citizen of China, has appealed from the decision of the Immigration Judge dated March 12, 2014, denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT'). See sections 208(b)(l)(A) and 241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ I 158(b)(l)(A) and 1231(b)(3)(A); 8 C.F.R. §§ 1208.16 and 1208.18. The record will be remanded.

We review for clear error the findings of fact, including any credibility determination, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof and issues of discretion. 8 C.F.R. § 1003.l(d)(3)(ii). The respondent's asylum application, filed on October 4, 2011, is governed by the REAL ID Act. Matter of S-B-. 24 l&N Dec. 42, 43 (BIA 2006).

In her decision of March 12, 2014, the Immigration Judge did not explicitly make a credibility determination, but she determined that the respondent did not meet his burden of proof because his testimony was not sufficiently persuasive, and he did not sufficiently corroborate his claim under the standards set forth by the REAL ID Act. See section 208(b)(l)(B)(ii) of the Act; Ren v. Holder, 648 F.3d 1079, 1093 (9th Cir. 2011) (stating that "[i]f a credible applicant has not yet met his burden of proof, then the [Immigration Judge] may require corroborative evidence"). The Immigration Judge stated that the respondent should have provided corroboration, at least in the form of a letter from his parents, that he received massage treatments after he was released from detention, that his fellow church members suffered the same treatment he had received, or that the police are still looking for him (l.J. at 11-12; Tr. at 25-27, 32).

Although the respondent was questioned about why he did not present evidence that he had received massage treatments (Tr. at 25-26), he was not asked why he did not present evidence regarding the treatment of his fellow church members or his claim that the police are still searching for him, and he was not given the opportunity to produce such evidence. Following

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the Immigration Judge's decision, the Ninth Circuit issued a precedent decision which makes clear that it is not enough for an Immigration Judge to question an asylum applicant about whether he has specific evidence; she must ask "whether he could produce such corroborating evidence or give him the opportunity to produce it." Lai v. Holder, 773 F .3d 966, 976 n.3 (9th Cir. 2014). Additionally, the Immigration Judge should ask why the corroborating evidence was not provided immediately at the hearing. Id. Here, the Immigration Judge's question to the parties whether they had additional evidence to present or whether they were ready for a decision at that time (Tr. at 47) was insufficient where the respondent was not put on notice that certain evidence was required, was not asked why he did not produce it, and was not given the opportunity to produce it or to explain why he could not produce it.

Accordingly, the record V1ill be remanded to the Immigration Court to give the respondent an opportunity to produce the requested evidence or to explain why he has not produced such evidence. The Immigration Judge should also make an explicit credibility determination. Thereafter, the Immigration Judge should enter a new decision based on the entire record as then constituted.

ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

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I

U.S. Department of Justice Execmive Office for Immigration Review


File: - Phoenix, AZ


Date:

In re:


APPEAL


CHARGE:

Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] -In the United States in violation of law

APPLICATION: Cancellation of removal under 240A(b)

The respondent, a native and citizen of Nigeria, has appealed the Immigration Judge's April 2, 2014, written decision denying her application for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b). The Immigration Judge found, inter alia, that the respondent did not meet her burden of showing the requisite good moral character for cancellation of removal. See section 240A(b)(l)(B) of the Act. The Immigration Judge also denied voluntary departure on discretionary grounds. In particular, the Immigration Judge found that the respondent gave false testimony under oath to a United States Citizenship and Immigration Services ("USCIS'') officer to obtain an immigration benefit in violation of section 101(f)(6) of the Act, 8 U.S.C. § 110l(f)(6), in connection with an adjustment of status application. Because the Immigration Judge relied on evidence that was submitted after the hearing's conclusion and has not been admitted into evidence, the record will be remanded. See Department of Homeland Security's ("DHS") Submission of Evidence, filed August 13, 2013.

We are not persuaded that the record is sufficiently developed to meaningfully exercise our review over the issues presented on appeal, as the Immigration Judge's good moral character and voluntary departure determinations should be based on admitted evidence. See Matter of S-H-, 23 I&N Dec. 462 (BIA 2002); Matter of A-P-, 22 I&N Dec. 468 (BIA 1999). Consequently, we will remand the proceedings so that the parties will have an opportunity to address the admissibility and weight of the supplemental evidence. 1 On remand, the parties may submit any additional evidence or argument in support of their positions and the Immigration Judge may consider any such additional evidence and argument appropriate to the resolution of this matter.

1 To ensure adequate appellate review of video-recorded media, the content should be included in the Certified Administrative Record. As such, before relying on the respondent's video-recorded users adjustment of status application interview, the Immigration Judge may order additional filings by the parties regarding the video evidence, such as a transcript or stipulation of the content. See Matter of Fuentes, 2014 WL 6882901 (BIA Oct. 28, 2014); Afatter of Marines, 2007 WL 1724849 (BIA May 22, 2007) (unpub.)

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ORDER: The record is remanded for further proceedings consistent with this decision and the entry of a new decision.

FOR THE BOARD<

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u.~. l)epartment of Jnstice Executive Office for Immigration Review



In re:


APPEAL


Date:



The respondent, a native and citizen of the People's Republic of China, has appealed from the Immigration Judge's decision dated March 25, 2014, denying her applications for asylum and withholding of removal under sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3), and for protection under the Convention Against Torture ("Convention"). The appeal will be sustained.

The Board defers to the factual findings of an Immigration Judge, unless they are clearly erroneous, but it retains independent judgment and discretion, subject to applicable governing standards, regarding questions of law and the application of a particular standard of law to those facts. 8 C.F.R. §§ 1003.l(d)(3)(i), (ii). Because the respondent's application for relief from removal was filed after May 11, 2005, it is subject to the REAL ID Act of2005. See Matter of S-B-, 24 l&N Dec. 42 (BIA 2006).

On appeal, the respondent argues that her testimony is credible. See section 208(b )(! )(B)(iii) of the Act; Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (an agency may, "[c]onsidering the totality of the circumstances, ... base a credibility finding on the demeanor, candor or responsiveness of the applicant,. [and] the consistency between the applicant's or witness's written or oral statement, ... without regard to whether an inconsistency ... goes to the heart of the applicant's claim."); Matter of J-Y-C-, 24 J&N Dec. 260 (BIA 2007). The examples cited by the Immigration Judge of the respondent's lack of credibility are minor or were satisfactorily explained, and it was clear error to have rendered an adverse credibility determination based on those examples. Consequently, the respondent's testimony is credible.

In addition, the respondent has established that she suffered mistreatment in China on account of her religion which rises to the level of past persecution. See Ivanishvili v. US. Dept. of Justice, 433 F.3d 332 (2d Cir. 2006) (describing the level of harm required for past persecution (J.J. at 21-22). The respondent testified that she was arrested in China on

2010, and 2011, on accow1t of her religions activities (Tr. at 19-22). She further testified that the authorities held her for two days subsequent to her 2011, arrest, slapped her, pulled her hair, and then held her for an additional ten days in an educational center (J.J. at 17, 21-22; Tr. at 37-38). These actions, considered cumulatively, are sufficient to establish past persecution. Moreover, the Department of Homeland Security has not established a fundamental change in circumstances in China such that the respondent no longer has a well-

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foWlded fear of persecution. In light of the foregoing, the respondent is eligible for asylwn. We therefore need not address her application under the Convention.


ORDER: The appeal is sustained.


2

(b) (6)

- U.S. Department of Justice Executive Office for Immigration Review

Falls Church. Virginia 2204 I

File: - San Antonio, TX

In re:


APPEAL

Dec1s1on of the Board of Immigration Appeals

Date:


ON BEHALF OF OHS: Cori White Assistant Chief Counsel

APPLICATION: Reopening

The respondent, a native and citizen of Honduras, appeals from the Inunigration Judge's decision dated March 7, 2014. We review questions oflaw, discretion, and judgment arising in appeals from decisions oflmmigration Judges de novo. whereas we review findings of fact in such appeals under a "clearly erroneous" standard. See 8 C.F.R. § 1003.l(d)(3). The record will be remanded.

The Immigration Judge denied the respondent's September 24, 2013, motion to reopen her removal proceedings after the issuance of an in absentia order of removal on July 20, 2004. Pursuant to section 240(b)(SJ(C) of the Imm1gration and Nationality Act, 8 U.S.C. § 1229a(b)(S)(C), an in absentia removal order may be rescinded only (I) upon a motion to reopen filed within 180 days after the date of the order ofremoval ifthe alien demonstrates that the failure to appear was because of exceptional circumstances, or (2) upon a motion to reopen filed at any time if the alien demonstrates that he or she did not receive notice of the hearing in accordance with sections 239(a)(I) or (2) of the Act, or that the alien was in Federal or State custody and did not appear through no fault of the alien. Sections 240(b)(S)(C)(i) and (ii) of the Act; see also Maller of Guzman, 22 I&N Dec. 722, 722-23 (BIA 1999). The respondent's motion did not establish any of these circumstances. The motion argued lack of notice of the July 20, 2004. hearing due to an incorrect address on the Notice to Appear (NT A). but this argument does not succeed given the fact that the NT A itself, which was personally served on the respondent, contained the notice of hearing including location and date. The respondent therefore has not met the statutory grounds for rescission of her order of removal under section 240(b)(S)(C) of the Act.

The respondent's motion sought reopening for the purpose of applying for asylum, withholding ofremoval, and protection under the Convention Against Torture (CAT). With certain exceptions, a motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal. Section 240(c)(7)(C)(i) of the Act; 8 C.F.R. § 1003.23(b)(I). Thus the September24, 2013, motion to reopen was untimely. However, the time limits for motions to reopen do not apply if the basis of the motion is to apply or reapply for asylum or withholding of removal based on changed country conditions arising in the country of nationality, if such evidence is material and was

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not available and could not have been discovered or presented at the fonner hearing. Section 240(c)(7)(C)(ii) of the Act; 8 C.F.R. § 1003.23(bj(4)(1J; Matter of J-J-, 21 l&N Dec. 976 (BIA J 997 ).'

We find it appropriate to remand the record to allow the Immigration Judge to reconsider the respondent's motion to reopen for the purpose of applying for asylum, withholding ofremoval, and protection under the CAT. It is not apparent that the Immigration Judge considered all of the evidence of alleged incidents that the respondent offered as evidence of changed country conditions in Honduras. In addition, the Immigration Judge did not address the respondent's claim that she would be persecuted based upon her membership in a particular social group. We therefore will remand the record to allow the Immigration Judge to prepare a more complete decision.


ORDER: The record is remanded for further proceedings.

FOR THE BOARD

1 An alien who is subject to an in absentia removal order need not first rescind the order before seeking reopening of the proceedings to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien's nationality or the country to which removal has been ordered. Matter of J-G-. 26 I&N Dec. 161 (BIA 2013).

2

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. ' U.S. Department of Justice Executive Office for Immigration Review



File: - Charlotte, NC Date: JAN 1 3 2016 In re:


APPEAL


APPLICATION: Cancellation ofremoval

The respondent, a native and citizen of Mexico, appeals the decision of the Immigration Judge dated March 12, 2014, granting a motion filed by the Department of Homeland Security ("DHS") to pretermit the respondent's application for cancellation of removal under section 240A(b)(l) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(l). The respondent's appeal will be sustained, the Immigration Judge's decision will be vacated, and the record will be remanded to the Immigration Judge for further proceedings.

We review Immigration Judges' findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. § 1003.l(d)(3). Because the respondent's Form EOIR-42B was filed on or after May 11, 2005, it is subject to the provisions of the REAL ID Act of2005. It is the respondent's burden to establish eligibility for relief from removal. See section 240(c)(4)(A) of the Act; 8 C.F.R. § 1240.8(d).

For purposes of cancellation of removal, a departure from the United States under threat of removal proceedings interrupts an alien's continuous physical presence. See Matter of Romalez, 23 I&N Dec. 423 (BIA 2002). However, ifthe evidence indicates that the alien's encounter with immigration authorities involved nothing more than being returned to the border following refusal of admission for failure to have proper documents, the encounter does not break continuous physical presence. See Matter of Avilez-Nava, 23 l&N Dec. 799 (BIA 2005).

During the pendency of this appeal, we issued two precedent decisions in which we clarified our holding in Matter of Avilez-Nava, supra. See Matter of Garcia-Ramirez, 26 I&N Dec. 674 (BIA 2015); Matter ofCastrejon-Colino, 26 I&N Dec. 667 (BIA 2015). Specifically, we concluded in these two recent decisions that, where an alien had the right to appear before an Immigration Judge, evidence that photographs and fingerprints were taken in conjunction with a voluntary departure or return is insufficient to break the alien's continuous physical presence in the absence of evidence that he or she was informed of and waived the right to a hearing.

We noted in Castrejon-Colino that the salient point to be taken from Matter of Avilez-Nava is that a voluntary departure will not break the alien's continuous physical presence unless there is evidence that the alien knowingly accepted its terms. Matter of Castrejon-Colino, supra, at 670. We also stated that the evidence required to show a process of sufficient formality to break an alien's continuous physical presence will depend on the circumstances of each case. Id. at 671.

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We further noted in Castrejon-Colino that although the alien ultimately bears the burden of proving the required continuous physical presence, the DHS is in a better position to fill gaps in the evidence and resolve any disputes by presenting documentation in its own records to show the formality of the process. Id. at 672 n.5; see also Matter of Garcia-Ramirez at 677 n.4.

In the instant case, the Immigration Judge pretermitted and denied the respondent's application after finding that the respondent did not meet his burden to establish that he had been physically present in the United States for a continuous period of at least 10 years when he was served with the Notice to Appear. See sections 240A(b)(l)(A) and 240A(d)(l) of the Act Specifically, the Immigration Judge found that the respondent's Form 1-213, which included the respondent's photograph and fingerprints and indicated that the respondent was granted a request for voluntary return on , 2008, established a formal, documented return of the respondent to Mexico on that date. The Immigration Judge also found that, as the respondent was served with the Notice to Appear on July 9, 2013, he had not established at least JO years of continuous physical presence in the United States. In reaching this determination, the Immigration Judge noted that, given the respondent's denial in his Form EOIR-42B of having ever departed the United States since his arrival in 2002, his testimony that he was not given the option to appear before an Immigration Judge during his , 2008, encounter with immigration authorities suffered from diminished credibility (JJ. at 1-5; Group Exh. 2, Tab A at 2, item no. 23; Group Exh. 3, Form 1-213).

We acknowledge and share the Immigration Judge's concerns about the respondent's credibility. Nonetheless, we agree with the respondent's appellate argument that the evidence in this case is insufficient to show that a formal, documented process took place at the border on January 30, 2008 (Respondent's Brief at 1-8). As argued by the respondent on appeal, while the record shows that he was allowed to return to Mexico and that his picture and fingerprints were taken at the border on , 2008, the record lacks evidence that be was compelled to depart the United States under threat of removal or that such a threat was ever made, communicated, or conveyed to him. Id. Nor do we find that the documents presented by the DHS show that the terms and conditions of the respondent's 2008, departure were clearly specified, More specifically, the evidence in this case is insufficient to establish that the respondent was made aware, when immigration officials allowed him to voluntarily return to Mexico on , 2008, of the possibility of appearing at a hearing before an Immigration Judge and that, having been given that option, the respondent affirmatively agreed to depart in lieu of being subjected to removal proceedings. Matter o/Castrejon-Colino, supra, at 670.

We also agree with the respondent that the facts in his case differ from those in Garcia v. Holder, 732 FJd 308 (4th Cir. 2013), in that, unlike in his particular case, the alien in Garcia testified that be was explicitly offered an opportunity to appear before an Immigration Judge, which the alien declined, instead opting to return to Mexico (Respondent's Brief at 5-8).

The Immigration Judge's finding that the respondent did not meet his burden to establish that . be met the continuous physical presence requirement was the only basis for the Immigration

Judge's decision to pretermit and deny the respondent's application for cancellation of removal. Therefore, we find it appropriate to remand this case to give the Immigration Judge an

2

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opportunity to address the remaining criteria for cancellation of removal, including the criterion of exceptional and extremely unusual hardship to a qualifying relative.

In the remanded proceedings, both parties should be given another opportunity to submit evidence, including testimony, regarding the respondent's application for relief. We emphasize that our decision to remand the record does not indicate any opinion as to the proper outcome of this matter. Accordingly, the following orders shall be entered.

ORDER: Tue respondent's appeal is sustained.

FURTHER ORDER: Tue Immigration Judge's March 12, 2014, decision is vacated.

FURTHER ORDER: Tue record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

-

3

(b) (6)

;J:S. Department of Justice Executive Office for Immigration Review


Falls Church. Virgm1a 22041

File: - San Diego, CA Date:

In re:


APPEAL AND MOTION


ON BEHALF OF OHS: Kathryn Stuever Senior Attorney

CHARGE:

JAi~ - 8 2316

Notice: Sec. 212(a)(7)(A)(i)(I), l&N Act (8U.S.C.§l182(a)(7)(A)(i)(l)] -Immigrant - no valid immigrant visa or entry document

Sec. 212(a)(7)(A)(i)(II), l&N Act (8 U.S.C. § l 182(a)(7)(A)(i)(ll)] -Immigrant - visa not properly issued

APPLICATION: Cancellation of removal; motion to remand

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's April 10, 2014, decision denying her application for cancellation of removal under section 240A(b) of the Immigration and Nationality Act. 8 U.S.C. § 1229b(b). The appeal will be dismissed in part, and the record will be remanded.

The issue on appeal is whether the respondent has the l 0 years of physical presence in the United States necessary to qualify for cancellation of removal. The Department of Homeland Security ("OHS") submitted documents pertaining to the respondent's expedited order of removal on January 9, 2009 (Exhs. 17-20A). The respondent did not contest that she was the subject of an expedited removal proceeding, but instead contended that her due process rights were violated because her sworn statement was not read back to her in Spanish and she was not given an opportunity to review the documents before being instructed to initial and sign them, and that therefore the expedited removal process was invalid (l.J. at 5-6; Tr. at 47-50, 60-62).

The respondent is unable to demonstrate that the expedited order of removal violated due process. The record indicates that the expedited order occurred at a point of entry, and it is wellestablished that non-lawful permanent resident arriving aliens, like the respondent here, who have not effected an entry have no due process rights with regard to their immigration status. See Zadvydas v. Da1•is, 533 U.S. 678, 693 (2001) (the distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law .... [O]nce an alien enters the country. [his] legal circumstance changes. for the Due Process Clause applies to all "persons" within the United States, including aliens, whether

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' their presence here is lawful, unlawful, temporary, or permanent.); see also Kleindienst i•. Afandel, 408 U.S. 753. 766 (1972) (aliens who have entered the country are distinct from aliens at a port of entry). We further observe that the Board has no apparent jurisdiction to review a previous expedited order of removal. See generally section 242(e) of the Act, 8 U.S.C. § 1252(e).

On appeal, the respondent contends that the facts of her case are similar to those in United State v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014). where the court found a due process violation when an immigration officer failed to advise Raya-Vaca of the charge against him and to permit him to review his sworn statement (Respondent's Br. at 7-8). However, in contrast to the alien in Raya-Vaca, where there was no dispute that he had entered the United States before he was apprehended by the Border Patrol, the respondent here was subject to an expedited order of removal as an arriving alien at a port of entry, and therefore she was not entitled to expedited removal proceedings that conformed to the dictates of due process. Raya-Vaca, supra at 1203. Accordingly, the Immigration Judge properly determined that the respondent's expedited removal order severed the continuous residence required for cancellation of removal. See Juarez-Ramos v. Gonzales, 485 F.3d 509 (9th Cir. 2007).

With her appeal, the respondent has submitted a motion to reopen to allow her to resubmit an application for asylum that she withdrew at the October 30. 2009, hearing. 1 We will construe this as a motion to remand. See 8 C.F.R. § 1003.2(c)(4). The respondent contends that at the time she withdrew her asylum application the particular social group upon which she based her claim, govenunent informants, was not a cognizable social group under Ninth Circuit case law (Respondent's Br. at 12). Based on the evolving case law from both the Ninth Circuit and precedential decisions published by this Board related to particular social groups, we will remand the record to afford the respondent the opportunity to resubmit her application for asylum. See Henriquez-Rivas v Holder, 707 F.3d 1081 (9th Cir. 2013); Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014); Matter of W-G-R-. 26 I&N Dec. 208 (BIA 2014); Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014).

ORDER: The record is remanded for further proceedings consistent with this decision.

FOR ffiE BOARD c::::::::\

1 Respondent, with new counsel at the August 30, 2012, hearing reiterated that she was withdrawing her asylum application (Tr. at 19-20).

2

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Falls Cliurch, Virginia 20530

File: - Boston, MA

In re:


APPEAL


Date:



The respondent, a native and citizen of India, has appealed from the decision of the Immigration Judge dated March 24, 2014, denying his application for asylum and withholding of removal under sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231 (b )(3 ), and his request for protection under the Convention Against Torture. The Department of Homeland Security has not filed a response. The respondent's appeal will be sustained in part and the record will be remanded.

We review Immigration Judges' findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. §§ 1003.l(d)(3)(i), (ii). Because the respondent's application was filed on July 9, 2012, it is subject to the provisions of the REAL ID Act of2005.

The Immigration Judge detennined that the respondent was a credible witness (LJ. at 4 ). The respondent testified that he is a Sikh who was active in the Shiromani Akali Dal Amritsar Party. On 2009, the respondent helped prepare for a religious rally and was returning to his village with six other members of his party when they were approached by 15 to 20 people from the opposition party who began to beat them. The attackers hit the respondent with a wood~n pole on his shoulder; he fell down, and they beat him on his back for two to three minutes. Then the police came and the attackers ran away. The police arrested the respondent, stating that he and his other party members were creating chaos, but did not take a report. The respondent was not released from custody until two days later, at which point he was taken to a hospital for treatment and released the same day. Throughout the rest of the year, the respondent and his father both received threatening phone calls. On , 2010, the respondent was returning home on his motorbike when he encountered 15 to 16 men standing shoulder-to-shoulder blocking the road. They knocked the respondent off his motorbike and beat him, striking him in the head with a pole and splitting open his chin, requiring stitches. The respondent lost consciousness and was hospitalized for two days. He subsequently received a death threat over phone.

Upon de novo review, we conclude that the harm the respondent experienced in India rises to the level of past persecution. Persecution means "a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive." Matter of Acosta, I 9 I&N Dec. 211, 222 (BIA 1985 ). "[P]ast persecution requires that the totality of a

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p1•itioner's experiences add up to more than mere discomfiture, unpleasantness, harassment, or ~air treatment."). Nikijuluw v. Gonzales, 427 F.3d 115, 120 (!st Cir. 2005). We conclude that the significant physical harm the respondent experienced, including an incident where he lost consciousness and required significant medical attention, combined with the numerous threats he received, rises to the level of past persecution.

Furthermore, we find clear error in the Immigration Judge's finding that the respondent did not demonstrate that the persecution was inflicted either by the Indian authorities or by persons that the government was unwilling or unable to control O.J. at 6). During the 2009 incident, the respondent was the victim of a violent attack, but the police not only failed to take a report or investigate, they instead arrested and detained him for two nights without charges. Given these facts, we conclude that the respondent sufficiently demonstrated that the persecution was inflicted by individuals that the government was unwilling or unable to control. The respondent is therefore entitled to a rebuttable presumption that he has a well-founded fear of future persecution upon return to India. See 8 C.F.R. § 1208.13(b)(l); Matter ofD-I-M-, 24 I&N Dec. 448, 450 (BIA 2008).

In light of the foregoing, we will remand the record to the Immigration Judge for the entry of a new decision with respect to the respondent's application for asylum. Upon remand, the Immigration Judge should determine whether the Department of Homeland Security has met its burden of demonstrating a fundamental change in circumstances such that the respondent no longer has a well-founded fear of persecution or that the respondent could avoid future persecution by relocating to another part of India. See 8 C.F.R. § 1208.13(b)(l)(i), (3)(ii). The Immigration Judge may also consider, if appropriate, whether the respondent is eligible for humanitarian asylum, including whether there is a reasonable possibility that he would suffer other serious harm upon return to India. See 8 C.F.R. § !208.13(b)(l)(iii). Accordingly, the following order is entered.

ORDER: The appeal is sustained in part and the record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision concerning the respondent's application for asylum under section 208 of the Act.

~OARD ' ~~

2

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U.S. Department of Justice Executive Office for lmnugrat1on Revtew

Dec1smn of the Board of Imnugrauon Appeals

Falls Church, V rrgm1a 22041

File: - Bloomington, MN Date:

In re:


APPEAL


ON BEHALF OF OHS:

CHARGE:

Darrin E. Hetfield Assistant Chief Counsel

JAN - 8 ~CT16

Notice: Sec. 237(a)(2)(A)(iii), I&N Act (8 U.S.C. § 1227(a)(2)(A)(iii)] -Convicted of aggravated felony

Sec. 237(a)(2)(A)(i), I&N Act [8 U.S.C. § 1227(a)(2)(A)(i)] -Convicted of cnme involving moral turpitude


The respondent, a native and citizen of Somalia, appeals the Immigration Judge's April I 0, 2014, decision denying his motion to reopen for asylum and withholding of removal, pursuant to sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 123 l(b)(3), and protection pursuant to the Convention Against Torture. We review the Immigration Judge's factual findings for clear error and all other issues de novo. See 8 C.F.R. § 1003.l(d)(3). The record will be remanded.

On appeal, the respondent argues that the Immigration Judge erred by denying his motion to reopen (l.J. at 4). Pursuant to the regulations at 8 C.F.R. § 3.2(c)(2), only one motion to reopen is allowed and must be filed with the Board not later than 90 days after the date on which the final admimstrative decision was rendered. In this case, on March 18, 2010, the Imnugration Judge properly granted the respondent's first motion to reopen based on the respondent's representations that, after his earlier hearing, he spoke to his mother and learned that his father was involved in the previous Somali government. The respondent feared that he would be tortured and killed if he returned to Somalia (March 18, 2010, l.J. at I). In light of the respondent's age, lack of knowledge of his family in Somalia, and the fact that he appeared pro se, the Immigration Judge reopened the proceedings sua sponte. At the subsequent hearing, the respondent did not apply for relief and again asked to be removed from the Umted States (l.J. at l ). The respondent was then ordered removed on March 23, 2010.

The respondent filed a second motion to reopen 4 years later. In this motion, the respondent stated that, on 2011, he was hospitalized for mental illness and was diagnosed with schizophrema, delusional thinking, paranoia, and anxiety. See Respondent's Brief at 4;

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Attachment to Motion to Reopen, Tab B at 6-9. He was hospitalized for mental illness several times in 2012 and 2013. Attachment to Motion to Reopen, Tab Bat 5. The respondent lives in an Adult Foster Care home and receives psychiatric treatment. Attachment to Motion to Reopen, Tab B at 2-4. The respondent also contends that, during his prior inunigration hearings, he was having hallucinations. The respondent sought reopening based, inter a/ia, on the new evidence of his mental illness diagnosis as well as his contention that the mentally ill are persecuted in Somalia. See Respondent's Brief at 10-14. He claimed that he is a member of the particular social group of '"mentally ill persons who experience resulting behavior" and that he would be persecuted and tortured in Somalia See Respondent's Brief at 12-14. See Matter of W-G-R-, 26 l&N Dec. 208, 216 (BIA 2014); Matter of M-E-V-G-, 26 l&N Dec. 227, 237 (BIA 2014); Matter of A-R-C-G-, 26 I&N Dec. 388, 392 (BIA 2014).

Given the fact that the respondent was diagnosed with mental illness in 2011, and his multiple subsequent hospitalizations, we conclude that the respondent has demonstrated a change in his personal circumstances. In light of the specific facts presented in this case, we will sua sponte reopen the respondent's proceedings pursuant to 8 C.F.R. § 1003.2 and remand the record to the Immigration Judge. See generally Matter of J-J-, 21 I&N Dec. 976. 984 (BIA 1997). On remand, the Immigration Judge should determine whether the respondent is competent to participate in these proceedings under the guidelines we outlined in Matter of M-A-M-, 25 I&N Dec. at 474, 479-81 (BIA 2011). If the Immigration Judge concludes that procedural safeguards are needed, he should apply them prior to evaluating the respondent's asylum claim. Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with this opinion and the entry of a new decision.

2

(b) (6)

U.S. Department of Justice Ex.ecutive Office for Inµnigration Review

Falls Chnrcb, Virginia22041

Files: - Los Angeles, CA

In re:


APPEAL


Date: JAN 2 1 2!J16



The respondents, natives and citizens of China, have appealed the Immigration Judge's decision dated May 14, 2014, which denied their applications for asylum pursuant to section 208(b)(l)(A) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1158(b)(l)(A), withholding of removal pursuant to section 241(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A), and for protection under the Convention Against Torture ("CAT") pursuant to 8 C.F.R. §§ 1208.16-1208.18. 1 The Department of Homeland Security ("OHS") did not file a response to the appeal. The record will be remanded for further proceedings.

We review the findings of fact, including the determination of credibility, made by the Immigration Judge under a ''clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including whether the parties have met their relevant burden of proof, and issues of discretion, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii). The respondents' applications for relief from removal are governed by the amendments to the REAL ID Act. See Matter ofS-B-, 24 I&N Dec. 42 (BIA 2006).

The Immigration Judge denied the applications for relief from removal, finding that the respondent submitted an abortion certificate that was unreliable and did not show that her abortion was "forced," and that the remainder of her corroborating evidence was insufficient to satisfy her burden of proof (I.J. at 3-5). The Immigration Judge did not otherwise make any findings with regard to the credibility of the respondent's testimony and overall claim.

As properly noted on appeal, the Immigration Judge clearly erred in finding that the abortion certificate listed the respondent's age incorrectly and that the respondent "basically testified that the form is not reliable," as this mischaracterized her explanation for why the doctor may have

1 The respondents consist of the lead respondent and her minor child . The minor child is a derivative beneficiary of the lead respondent's asylum application.

All references to the "respondent" pertain to the lead respondent.

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found it unnecessary to inquire and record her past illnesses in the certificate in the context of an alleged forced abortion (l.J. at 4; Respondent's Br. at 3; see Tr. at 29, 35-41; Exh. 4:Tab 5).

Moreover, under the REAL ID Act, an applicant's testimony may be "sufficient to sustain the applicant's burden without corroboration" if the applicant's testimony is credible, persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. Section 208(b)(l)(B)(ii) of the Act. The Act also provides that [i]n determining whether the applicant has met [his or her] burden, the trier of fact may weigh the credible testimony along with other evidence of record." Id. As such, the absence of a credibility analysis and determination in the instant case prevent us from meaningfully reviewing the Immigration Judge's conclusion that the respondent failed to satisfy her burden of proving her eligibility for relief from removal.

In view of the foregoing, reconsideration of the respondent's eligibility for relief from removal is appropriate. We also note that the United States Court of Appeals for the Ninth Circuit has since issued intervening decisions that clarify its interpretation of the credibility and corroboration standards under the REAL ID Act. Ai Jun Zhi v. Holder, 751 F.3d 1088 (9th Cir. 2014), and Lai v. Holder, 773 F.3d 966 (9th Cir. 2014), reaffirmed the importance of a clear credibility detennination when analyzing whether an asylum applicant satisfied his or her burden of proof, and the Immigration Judge should apply these and other prevailing case law on remand. In remanding this case, we intimate no opinion regarding the respondent's ultimate eligibility for relief from removal. The following order shall be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings and entry of new decision consistent with the foregoing opinion and prevailing case law.

2

(b) (6)

U.S. Department of Justice Ex.ecutive Office for Inµnigration Review

Falls Chnrcb, Virginia22041


In re:


APPEAL


Date: JAN 2 1 2!J16



The respondents, natives and citizens of China, have appealed the Immigration Judge's decision dated May 14, 2014, which denied their applications for asylum pursuant to section 208(b)(l)(A) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1158(b)(l)(A), withholding of removal pursuant to section 241(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A), and for protection under the Convention Against Torture ("CAT") pursuant to 8 C.F.R. §§ 1208.16-1208.18. 1 The Department of Homeland Security ("OHS") did not file a response to the appeal. The record will be remanded for further proceedings.

We review the findings of fact, including the determination of credibility, made by the Immigration Judge under a ''clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including whether the parties have met their relevant burden of proof, and issues of discretion, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii). The respondents' applications for relief from removal are governed by the amendments to the REAL ID Act. See Matter ofS-B-, 24 I&N Dec. 42 (BIA 2006).

The Immigration Judge denied the applications for relief from removal, finding that the respondent submitted an abortion certificate that was unreliable and did not show that her abortion was "forced," and that the remainder of her corroborating evidence was insufficient to satisfy her burden of proof (I.J. at 3-5). The Immigration Judge did not otherwise make any findings with regard to the credibility of the respondent's testimony and overall claim.

As properly noted on appeal, the Immigration Judge clearly erred in finding that the abortion certificate listed the respondent's age incorrectly and that the respondent "basically testified that the form is not reliable," as this mischaracterized her explanation for why the doctor may have

1 The respondents consist of the lead respondent ( ) and her minor child ( The minor child is a derivative beneficiary of the lead respondent's asylum application.

All references to the "respondent" pertain to the lead respondent.

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,.

found it unnecessary to inquire and record her past illnesses in the certificate in the context of an alleged forced abortion (l.J. at 4; Respondent's Br. at 3; see Tr. at 29, 35-41; Exh. 4:Tab 5).

Moreover, under the REAL ID Act, an applicant's testimony may be "sufficient to sustain the applicant's burden without corroboration" if the applicant's testimony is credible, persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. Section 208(b)(l)(B)(ii) of the Act. The Act also provides that [i]n determining whether the applicant has met [his or her] burden, the trier of fact may weigh the credible testimony along with other evidence of record." Id. As such, the absence of a credibility analysis and determination in the instant case prevent us from meaningfully reviewing the Immigration Judge's conclusion that the respondent failed to satisfy her burden of proving her eligibility for relief from removal.

In view of the foregoing, reconsideration of the respondent's eligibility for relief from removal is appropriate. We also note that the United States Court of Appeals for the Ninth Circuit has since issued intervening decisions that clarify its interpretation of the credibility and corroboration standards under the REAL ID Act. Ai Jun Zhi v. Holder, 751 F.3d 1088 (9th Cir. 2014), and Lai v. Holder, 773 F.3d 966 (9th Cir. 2014), reaffirmed the importance of a clear credibility detennination when analyzing whether an asylum applicant satisfied his or her burden of proof, and the Immigration Judge should apply these and other prevailing case law on remand. In remanding this case, we intimate no opinion regarding the respondent's ultimate eligibility for relief from removal. The following order shall be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings and entry of new decision consistent with the foregoing opinion and prevailing case law.

2

(b) (6)

U.S. D_epartment of Justice Executive Office for Immigrarion Review . . Falls Chutch, Virginia 2204 l

Files: - Baltimore, :MD

In re:


APPEAL


Date:



The respondents, natives and citizens of Nepal, appeal from the IDlDligration Judge's April 25, 2014, decision denying the female respondent's applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). 1 The record will be remanded.

The Board reviews Immigration Judges' findings of fact for clear error, but reviews de novo questions of law, discretion, and all other issues on appeal. 8 C.F.R. § 1003.l(d)(3). As the respondent's applications were filed after May IL 2005, they are governed by the standards set forth in the REAL ID Act of 2005. Matter of S-B-, 24 I&N Dec. 42 (BIA 2006). It is the applicant's burden to establish eligibility for relief from removal. Section 240(c)(4)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d). Moreover, the applicant mnst show that a protected ground is at least one "central reason" for the claimed harm. Section 208(b)(l )(B)(i) of the Act, 8 U.S.C. § l 158(b)(l l(B)(i); Matter ofC-T-L-, 25 I&N Dec. 341, 34 7 (BIA 2010) (holding that the one c.entral reason test also applies to withholding claims).

The Immigration Judge found that the respondent was ineligible for asylum under sections 208(a)(2)(B) and (D) of the Act because she did not file her asylum application within one year of her arrival in the United States and dj~ not show "exceptional circumstances" for her failure to file within the I-year time limit. The respondent does not dispute that her asylum application was filed more than I year after her 2010 arrival, but she argues that she established extraordinary circumstances within the meaning of section 208(a)(2)(b) of the Act because she was here in lawful status with an F-2 visa until her husband violated his student status in 2012, by failing to continue attending the school for which he had received his F-1 visa. Applicable regulations provide that the term "extraordinary circumstances" refers to factors directly related to the failure to file the asylum application within a year of arrival, including where the applicant "maintained . . . lav.ful iDlDligrant or noniDlDligrant status . . . until a

1 Further references to the respondent in the singular are to the female respondent. Her husband, the lead respondent in this case, is a derivative beneficiary of that application (Exh. 2).

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reasonable period before the filing of an asylum application." 8 C.F.R. § 1208.4(a)(5)(iv). Because the record establishes that the respondent was in a lawful nonimmigrant status through July 1, 2012, and that she filed the asylum application in late July 2012 (Exh. 2), she has established extraordinary circumstances for her failure to file the application within a year of arrival and is not barred from eligibility for asylum. Section 208(a)(2)(D) of the Act. We therefore sustain the appeal in part.

We find that a remand is necessary for further consideration of the merits of the respondent's claims. TI1e Inffiligration Judge found that the respondent's testimony was credible in this case (l.J. at 7). The respondent testified that she was attacked on four occasions between 2004 and 2008 by Maoists. She testified that she was active in the Nepali Congress Party and its affiliated Student Union. She stated that the 2004 attack occurred when she was walking home from a Nepali Student Union activity, at which time she was beaten and told that she should not participate in anti-Maoist activities (Tr. at 30-32), and that the 2006 attack occurred when she was on her way to school, at which time she was beaten and her attackers told her not to work with the Nepali Student Union and that she should join the Maoists (Tr. at 34-37). Other attacks, in 2008 and 2010, involved curses for not supporting the Maoists, physical mistreatment, and demands for money (Tr. at 37-40).

The Immigration Judge found that the persons who attacked the respondent "were doing so for political purposes" (l.J. at 7), but did not indicate whether he was referring to the attackers' o~n political purposes or a political purpose related to the respondent's political opinion. Her credible testimony was that the attackers specifically targeted her for mistreatment because of her own political opinion, as expressed through her activities in support of the Nepali Student Union and Nepali Congress Party, which would indicate that "at least one central reason" for their mistreatment of the respondent was her political opinion. Nevertheless, the Immigration Judge concluded that the respondent had not shown she suffered past persecution because there was no showing that her attackers were "employees of the government or acting at the direction of the government at that time" (l.J. at 7). However, in order to show past persecution, an asylum applicant must show that harm was inflicted "by the government or by others whom the government is unable or unwilling to control." Mulyani v. Holder, 771F.3d190, 198 (4th Cir. 2014) (citing the Board's decision in Matter of Acosta, 19 I&N Dec. 439 (BIA 1987)) (emphasis added). As the Iimnigration Judge made no findings of fact regarding whether the Nepali government was "unable or unwilling" to control the Maoists, or whether the harm the respondent experienced during the attacks rose to the level of persecution, a remand is warranted for further consideration of the respondent's claims. 8 C.F.R. § 1003.l(d)(3)(iv) (the Board may not engage in fact-finding in the course of deciding appeals).


ORDER: The respondents' appeal is sustained in part, and the record is remanded for further proceedings consistent with the foregoing opinion, and for the entry of a new decision.

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2

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U.S. D_epartment of Justice Executive Office for Immigrarion Review . . Falls Chutch, Virginia 2204 l

Files: - Baltimore, :MD

In re:


APPEAL


Date:



The respondents, natives and citizens of Nepal, appeal from the IDlDligration Judge's April 25, 2014, decision denying the female respondent's applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). 1 The record will be remanded.

The Board reviews Immigration Judges' findings of fact for clear error, but reviews de novo questions of law, discretion, and all other issues on appeal. 8 C.F.R. § 1003.l(d)(3). As the respondent's applications were filed after May IL 2005, they are governed by the standards set forth in the REAL ID Act of 2005. Matter of S-B-, 24 I&N Dec. 42 (BIA 2006). It is the applicant's burden to establish eligibility for relief from removal. Section 240(c)(4)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d). Moreover, the applicant mnst show that a protected ground is at least one "central reason" for the claimed harm. Section 208(b)(l )(B)(i) of the Act, 8 U.S.C. § l 158(b)(l l(B)(i); Matter ofC-T-L-, 25 I&N Dec. 341, 34 7 (BIA 2010) (holding that the one c.entral reason test also applies to withholding claims).

The Immigration Judge found that the respondent was ineligible for asylum under sections 208(a)(2)(B) and (D) of the Act because she did not file her asylum application within one year of her arrival in the United States and dj~ not show "exceptional circumstances" for her failure to file within the I-year time limit. The respondent does not dispute that her asylum application was filed more than I year after her 2010 arrival, but she argues that she established extraordinary circumstances within the meaning of section 208(a)(2)(b) of the Act because she was here in lawful status with an F-2 visa until her husband violated his student status in 2012, by failing to continue attending the school for which he had received his F-1 visa. Applicable regulations provide that the term "extraordinary circumstances" refers to factors directly related to the failure to file the asylum application within a year of arrival, including where the applicant "maintained . . . lav.ful iDlDligrant or noniDlDligrant status . . . until a

1 Further references to the respondent in the singular are to the female respondent. Her husband, the lead respondent in this case, is a derivative beneficiary of that application (Exh. 2).

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reasonable period before the filing of an asylum application." 8 C.F.R. § 1208.4(a)(5)(iv). Because the record establishes that the respondent was in a lawful nonimmigrant status through July 1, 2012, and that she filed the asylum application in late July 2012 (Exh. 2), she has established extraordinary circumstances for her failure to file the application within a year of arrival and is not barred from eligibility for asylum. Section 208(a)(2)(D) of the Act. We therefore sustain the appeal in part.

We find that a remand is necessary for further consideration of the merits of the respondent's claims. TI1e Inffiligration Judge found that the respondent's testimony was credible in this case (l.J. at 7). The respondent testified that she was attacked on four occasions between 2004 and 2008 by Maoists. She testified that she was active in the Nepali Congress Party and its affiliated Student Union. She stated that the 2004 attack occurred when she was walking home from a Nepali Student Union activity, at which time she was beaten and told that she should not participate in anti-Maoist activities (Tr. at 30-32), and that the 2006 attack occurred when she was on her way to school, at which time she was beaten and her attackers told her not to work with the Nepali Student Union and that she should join the Maoists (Tr. at 34-37). Other attacks, in 2008 and 2010, involved curses for not supporting the Maoists, physical mistreatment, and demands for money (Tr. at 37-40).

The Immigration Judge found that the persons who attacked the respondent "were doing so for political purposes" (l.J. at 7), but did not indicate whether he was referring to the attackers' o~n political purposes or a political purpose related to the respondent's political opinion. Her credible testimony was that the attackers specifically targeted her for mistreatment because of her own political opinion, as expressed through her activities in support of the Nepali Student Union and Nepali Congress Party, which would indicate that "at least one central reason" for their mistreatment of the respondent was her political opinion. Nevertheless, the Immigration Judge concluded that the respondent had not shown she suffered past persecution because there was no showing that her attackers were "employees of the government or acting at the direction of the government at that time" (l.J. at 7). However, in order to show past persecution, an asylum applicant must show that harm was inflicted "by the government or by others whom the government is unable or unwilling to control." Mulyani v. Holder, 771F.3d190, 198 (4th Cir. 2014) (citing the Board's decision in Matter of Acosta, 19 I&N Dec. 439 (BIA 1987)) (emphasis added). As the Iimnigration Judge made no findings of fact regarding whether the Nepali government was "unable or unwilling" to control the Maoists, or whether the harm the respondent experienced during the attacks rose to the level of persecution, a remand is warranted for further consideration of the respondent's claims. 8 C.F.R. § 1003.l(d)(3)(iv) (the Board may not engage in fact-finding in the course of deciding appeals).


ORDER: The respondents' appeal is sustained in part, and the record is remanded for further proceedings consistent with the foregoing opinion, and for the entry of a new decision.

~\~:o e~--.,.. FOfiHE BOARD

2

(b) (6)

. . U.S. Department of Justice Executive Office for Immigration Review



File: - Los Angeles, CA Date:

In re:


APPEAL

ON BEHALF OF RESPONDENT: Pro se1

CHARGE:


JAN 2 7 2015


The respondent, a native and citizen of China, has appealed from the decision of the Immigration Judge dated May 15, 2014, denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). See sections 208(b)(l)(A) and 241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(b)(l)(A) and 123l(b)(3)(A); 8 C.F.R. §§ 1208.16 and 1208.18. The record will be remanded.

We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof and issues of discretion. 8 C.F.R. § 1003.l(d)(3)(ii). The respondent's asylum application was filed after May 11, 2005, and is governed by the REAL ID Act. See Matter of S-B-, 24 I&N Dec. 42, 43 (BIA 2006).

This case was last before us on November 9, 2012, when we sustained the respondent's appeal insofar as the Immigration Judge had found him to lack credibility and remanded the record for the Immigration Judge to re-assess the respondent's burden of proof pursuant to the · applicable REAL ID Act standards. See section 208(b)(l)(B)(ii) of the Act. We instructed the Immigration Judge to consider in her past persecution analysis that the respondent's past harm included the use of electric shock. See Quan v. Gonzales, 428 F.3d 883, 888 (9th 2005); Guo v. Ashcroft, 361 F.3d 1194, 1198 (9th Cir. 2004).

At the remanded hearing, the Immigration Judge took additional testimony from the respondent and admitted additional evidence in the form of documents relating to the

1 While the respondent is pro se in this case, there is a valid question as to whether his brief and other correspondence was prepared by an attorney. The respondent used an interpreter at the hearing, and the appeal brief is 26 pages long with citations to the record and case law.

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respondent's criminal conviction (Exh. 3-R). The Immigration Judge found that the harm claimed by the respondent did not rise to the level of persecution (I.J. at 3-6); that assuming the respondent to be credible and that the harm did rise to the level of persecution, the respondent "failed to meet his burden of proof that he would have a well-fow1ded fear of return to China today on the basis of his alleged Jehovali's Witness faith" (l.J. at 6-12); that the respondent does not merit an asylum grant in the exercise of discretion even if his eligibility had been established (I.J. at 11-12); and that he has not established his eligibility for withholding of removal or protection under the CAT. The respondent has appealed from that decision.

We find that a remand is warranted for further analysis of the respondent's applications for relief under the standards set forth by the REAL ID Act. In our previous decision, we remanded because discrepancies identified by the Immigration Judge in her May 18, 2011, decision regarding the respondent's receipt of medical attention and his cousin's detentions were nonexistent and therefore did not support an adverse credibility detemrination. We did not make a credibility finding. Moreover, we did not preclude the Immigration Judge from making a new credibility finding. At the remanded proceeding, the Immigration Judge took additional testimony and admitted additional evidence but did not re-visit her credibility determination (without the fore-mentioned errors), although she found the respondent's criminal conviction to be "further evidence establishing the respondent's dishonesty" (I.J. at 11-12), noted that she "does not know who the respondent really is" (I.J. at 11 ), and considered that the record contains discrepant information regarding where the respondent has worked and the jobs he has held while in the United States (I.J. at 9-10).

Under the REAL ID Act, a credibility detemiination is to be made after "[c]onsidering the totality of the circumstances, and all relevant factors." Section 208(a)(l)(B)(iii) of the Act. In view of the additional testimony taken and evidence received at the remanded proceedings, the Immigration Judge should make a . new credibility determination based on the entire record, without the errors mentioned in our prior decision and only considering discrepancies or omissions which the respondent has had the opportunity to explain.2 If the Immigration Judge fmds that the respondent lacks credibility, she should determine whether he has provided corroborative evidence which rehabilitates his testimony or independently satisfies his burden of proof.

If the Immigration Judge fmds the respondent credible, she should then detemline whether the respondent's testimony is sufficiently persuasive and refers to sufficient facts to demonstrate that the respondent is a refugee, or whether the respondent should provide corroborative evidence.3 Section 208(b)(l)(B)(ii) of the Act.4

2 It is not clear that the respondent had the opportunity to explain why his fomier girlfriend was in the possession of counterfeit documents or why he swore under oath at his removal proceedings although he had testified that Jehovali's Witnesses do not swear under oath.

3 In view of the fact tliat tllis case has previously been remanded, the Immigration Judge, if she finds the respondent to lack credibility, should make an alternate finding whether the respondent

(continued ... )

2

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We point out that if the Immigration Judge finds the respondent has established past persecution on account of his religion, he is presumed to have a well-founded fear of persecution on the basis of the original claim, and the Department of Homeland Security ("DHS") would then have the burden of rebutting that presumption by showing, by a preponderance of the evidence, that there has been a fundamental change in circumstances such that the respondent no longer has a well-founded fear of persecution or that he could avoid persecution by relocating to another part of China and, under all the circumstances, it would be reasonable for him to do so. 8 C.F.R. §§ 1208.B(b)(l)(i)(A) and (B). A finding that the respondent no longer practices the religion upon which his persecution claim is based may be considered in determining whether there has been a fundamental change in circumstances such that he no longer has a well-founded fear ofpersecution.5 8 C.F.R. § 1208.13(b)(l)(i)(A). See 65 Fed. Reg. 76,121, 76,127 (Dec. 6, 2000) (stating that "other changes in the circumstances surrounding the asylum claim, including a fundamental change in personal circumstances, may be considered, so long as those changes are fundamental in nature and go to the basis of the fear of persecution").

Finally, although the Immigration Judge found that the respondent had not established his eligibility for protection under the CAT, she provided no reasons for this determination. In her new decision, the Immigration Judge should fully set forth the reasons for her determination regarding the respondent's application for protection under the CAT. Accordingly, the record will be remanded to the Immigration Court.

( ... continued) has sufficiently corroborated his claim if he were presumed credible, in the interest of judicial economy.

4 The Immigration Judge found that the harm to the respondent did not rise to the level of persecution (I.J. at 2-6). However, ifthe respondent is credible we would conclude that the harm claimed by the respondent, considered cumulatively, in the form of a one-week detention, two interrogations in which he was repeatedly slapped on the face during the first and hit with an electric baton the second, forced to sign a statement in which he agreed to give up his religion and report weekly to the police station, and fired from his job, rises to the level of persecution on account of religion. See Guo v. Ashcroft, 361F.3d1194, 1198, 1203 (9th Cir. 2004)(finding that record compelled a finding that applicant's day and a half detention, during which he was struck twice in the face, kicked in the stomach, ordered to do push-ups, and forced to sign a paper saying he would no longer believe in Christianity, constituted persecution on account of the applicant's religious beliefs); see also Quan v. Gonzales, 428 F.3d 883, 888-89 (9th Cir. 2005) (finding that record compelled a finding of past persecution where asylum applicaut was arrested for participating in a house church, was beaten and abused with an electrically-charged baton, and was fired from her job).

5 The Immigration Judge indicated at the August 30, 2013, hearing that she would not accept into evidence a recent submission from the respondent, which included a letter from the respondent's church, because it was untimely. However, the proceedings were continued for another 8 Y2 months, and she did not address this submission at the continued hearing or in her decision. The Immigration Judge should address this submission at the remanded proceeding.

3

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ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and the entry of a new decision.

FOR THE BOARD

4

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U.S.'Department of Justice Ex·ecutive Office for Immigration Review


_Falls Church, Virginia 22041

File: - Boise, ID

In re: ·.


APPEAL


ON BEHALF OF DHS: Wayne B. Paugh Assistant Chief Counsel

CHARGE:

Date:

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] -Present without being admitted or paroled


JAN 1 3 2016

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's May 20, 2014, decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). 1 See sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 1208.I6(c). The appeal will be sustained and the record will be remanded for further proceedings consistent with this decision.

We review an Immigration Judge's findings of fact, including findings regarding witness credibility and what is likely to happen to the respondent, under a "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i); see also Ridore v_ Holder, 696 F.3d 907 (9th Cir. 2012); Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015). We review all other issues, including questions of law, discretion, and judgment, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii). The respondent's application was filed after May 11, 2005, and therefore is governed by the provisions of the REAL ID Act. Afatter ofS-B-, 24 I&N Dec. 42 (BIA 2006).

1 Neither party challenges the Immigration Judge's determinations that the respondent was competent to participate in these removal proceedings and that he established changed circumstances excusing his failure to timely file his asylwn application (I.J. at 3-5). Therefore those issues are not before us. See, e.g .. Matter of Cervantes, 22 l&N Dec. 560, 561 n.I (BIA 1999) (expressly declining to address an issue not raised by party on appeal).

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The respondent seeks asylum, withholding of removal, and protection under the CAT based on his fear of harm in Mexico by members of a criminal cartel based on his mental disabilities and his familial relationship to his nephew.

The Immigration Judge found that the respondent's family constituted a particular social group within the meaning of section 10l(a)(42) of the Act, 8 U.S.C. § l 10l(a)(42). See Rios v. Lynch, No. 12-72551, 2015 WL 7729563 (9th Cir. Dec. 1, 2015), ("the family remains the quintessential particular social group."). However, the Immigration Judge concluded that the respondent must show that the persecution "would be inflicted solely on account of family ties" (l.J. at 7). She also determined that "[M]ost importantly, there must be a pattern of persecution closely tied to the petitioner." Id. She concluded that the respondent did not show a pattern of persecution based on his family ties. Rather, the harm appeared to be the result of random violence. Accordingly, the Immigration Judge determined that the respondent did not meet his "burden to show that he would be harmed in the future on account of family ties." Id.

We find the Immigration Judge's nexus finding is clearly erroneous. Matter of N-M-, 25 I&N Dec. 526, 532 (BIA 2011) (persecutor's actual motive is a matter of fact to be determined by Immigration Judge, and reviewed by Board for clear error). Under the REAL ID Act, a respondent must establish that a protected ground "was or w:ill be at least one central reason for persecuting the respondent. See section 208(b)(l)(B)(i) of the Act. "[A]n asylum applicant need not prove that a protected ground was the only central reason for the persecution she suffered . . . [and] an applicant need not prove that a protected ground was the most important reason why the persecution occurred." See Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009). While the Immigration Judge cited the "one central reason" standard earlier in her decision, she applied a stricter standard when assessing the respondent's asylum claim by requiring his family ties to be the sole reason for the persecution (I.J. at 6, 7). Accordingly, we will remand the record for further fact-finding regarding the nexus between the harm the respondent feMs and a protected ground.

The Immigration Judge concluded that the respondent did not establish a well-founded fear of persecution because he did not show a pattern of persecution closely tied to him (I.J. at 7). See Korablina v. INS, 158 F.3d 1038, 1043-44 (9th Cir. 1998) (holding that "acts of violence against a petitioner's friends or family members may establish a well-founded fear of persecution," if the violence "create[s] a pattern of persecution closely tied to the petitioner."). In Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991 ), a case cited by the Immigration Judge, the Ninth Circuit found that "[T]he abduction of two geographically distant brothers by unknown gunmen for unknown reasons does not establish a well-founded fear." Id. In assessing the respondent's well-founded fear, the Immigration Judge did not seem to consider whether the harm suffered by the respondent's family was sufficiently connected to the respondent. Instead, she considered whether there was a nexus between the harm suffered by the respondent's relatives and a protected ground. Furthermore, it is unclear whether the Immigration Judge took the respondent's brother's affidavit into account in assessing the respondent's fear of

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·persecution.2 Therefore, on remand the Immigration Judge should reevaluate the respondent's fear of persecution based on his family ties.

In remanded proceedings, the Immigration Judge should also make a clear credibility finding. She found that the respondent was "not a credible witness overall," yet she declined to make an adverse credibility finding (l.J. at 4). If the Immigration Judge determines on remand that the respondent has failed to establish his eligibility for asylum and withholding of removal, the Immigration Judge should then separately reevaluate the respondent's CAT claim in light of the entire record, including the background information concerning country conditions in Mexico. See Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010) ("Even if the Immigration Judge correctly concluded that Aguilar's testimony, by itself, was insufficient to meet his burden under CAT, this conclusion would not be dispositive because a CAT applicant may satisfy his burden with evidence of country conditions alone."). Given the foregoing, we need not address the remaining issues on appeal.

ORDER: The record is remanded for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

2 The Immigration Judge left the record open for 30 days to allow for the respondent to submit a written statement from his brother (Tr. at 56).

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U.S. Department of Jnstice Executive Office for Immigration Review

Decision of the Board oflnunigration Appeals


File: - Omaha, NE Date:

In re:


APPEAL


ON BEHALF OF OHS: Matthew E. Morrissey Assistant Chief Counsel

CHARGE:

JAN - 8 2ri16



In a decision dated June 2, 2014, an Immigration Judge denied the respondent's applications for asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158, withholding ofremoval under section 24l(b)(3) of the Act, 8 U.S.C. § 123 l(b)(3), and protection under the Convention Against Torture, and ordered her removed from the United States to El Salvador. The respondent, appealed. We will remand the record for further proceedings and the entry of a new decision.

We review the lmmigration Judge's factual findings for clear error and all other issues de novo. 8 C.F.R. §§ 1003.l(d)(3)(i), (ii); see also Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015). Because the asylum application was filed after May 11, 2005, it is governed by the provisions of the REAL ID Act of2005. See },latter ofS-B-, 24 I&N Dec. 42 (BIA 2006).

The Immigration Judge determined that the respondent had been persecuted by her former boyfriend, but that she had not shown that the harm occurred on account of a protected ground. Both parties have filed briefs on appeal. The respondent requests the case be remanded so that her claim can be considered in light of our intervening decision in Matter of A-R-C-G-, 26 l&N Dec. 338 (BIA 2014). The Department of Homeland Security contends that the appeal should be dismissed, but it also contends that the hrunigration Judge incorrectly determined that the respondent was subject to a I-year bar on her asylum application.

Upon COJ!sideration of the totality of the circumstances and our limits on fact finding in the course of review, we will remand the record for the Immigration Judge to reevaluate the respondent's claim in the first instance. See generally lvfatter of S-H-, 23 I&N Dec. 462 (BIA 2002). This includes application of our decision in Matter of A-R-C-G-, supra. Both

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parties should have the opportunity to update the evidentiary record. Accordingly, the following order will be entered.

ORDER: The record is remanded for further proceedings consistent with the foregoing opinion, and the entry of a new decision.

2

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U.S. Departm\lnt of Justice Executive Office for 1In1nigration RevieVo.'


File: - Cleveland, OH

In re:


APPEAL


Date:

DEC 3 1 2015


ON BEHALF OF DHS: Jeremy Santoro Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(l)(C)(i), I&N Act [8 U.S.C. § 1227(a)(l)(C)(i)] -Nonimmigrant - violated conditions of status


This case was last before the Board on May 22, 2009, when we remanded proceedings to the Immigration Judge in order for him allow the respondent the opportunity for a new merits hearing with the presence of a Mandarin interpreter. Further, the Immigration Judge was to make clear findings of fact, including credibility findings, and to specifically consider whether the respondent established a well-founded fear of future persecution, or a likelihood of harm. Also, the Immigration Judge was to provide a thorough analysis of the respondent's claim under the Convention Against Torture (CAT). The respondent presently appeals the Immigration Judge's April 10, 2014, decision denying his application for asylun1 and withholding of removal pursuant to sections 208(a) and 24l{b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§I J58(a) and 1231(b)(3), and protection pursuant to the CAT. The appeal will be sustained and the record remanded for the appropriate background checks.

The Immigration Judge determined that the respondent was credible (l.J. at 11). Nevertheless, the Inunigration Judge found that the respondent did not establish past persecution or a well-founded fear of future persecution in China (l.J. at 12-15). Further, the Immigration Judge determined that the respondent did not meet his burden of proof for withholding of removal and CAT.

We review an Immigration Judge's findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F .R. §§ I003.l(d)(3)(i), (ii).

Accepting the respondent's testimony as true, we find that the respondent has established a well-founded fear of future persecution if he is returned to China. An alien may establish eligibility for asylum by demonstrating that a reasonable person in his circumstances

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would fear persecution on account of a protected ground. 8 C.F.R. § l 208. l 3(b )(2}: Ll\!S v. Cardoza-Fonseca, 480 U.S. 421 (1987); INS v. Stevie, 467 U.S. 407 (1984). The respondent testified that he was mistreated in China on account of activities as a journalist and documentalist. He fears persecution upon his removal to China because of his past activities (June 18, 2012, Tr. at 31-32). The respondent submitted an affidavit from his wife wherein she claimed that her house had been confiscated by government officials after the respondent failed to return to China from an assignment in the United States in 1998 (I.J. at 14; Exh. 3). The respondent's wife stated that she was beaten by a government official in 2004, after she could not provide information relating to the respondent's whereabouts (I.J. at 14; Exh. 3). The respondent's wife stated in her affidavit that as a result of the beating, she could not go to work for two weeks and had to remain in bed (l.J. at 14; Exh. 3). The respondent's wife maintained that the authorities in China continue to visit her home sporadically to inquire about the respondent.

The Immigration Judge did not find the statement provided by the respondent's wife worthy of belief be~ause the respondent's eleven year old daughter did not disclose the beating incident in her affidavit (l.J. at I4-15; Exh. 3). We do not find the respondent's minor daughter's omission of the beating in her affidavit sufficient to conclude that the respondent's wife was not tmthful or that the incident did not occur. We find the past mistreatment of the respondent, the confiscation of his home, the beating of his wife, and continued interest in his whereabouts makes his fear of future persecution as a dissident objectively reasonable. See Mapouya v. Gonzales, 487 F.3d 396 (6th Cir 2007). In addition to the respondent's testimony, docun1entary evidence in the record provides support for his asylum claim, insofar as it indicates that those believed to be in opposition to the Chinese government are often detained, incarcerated, and mistreated (Exh. 8). Based upon our review of the respondent's credible testimony and the documentary evidence in the record, we find that the respondent has established a well-founded fear of future persecution if he returns to China. See INS v. Cardoza-Fonseca, supra. As such, the Immigration Judge's decision \viii be reversed.


ORDER: The respondent's appeal is sustained and the decision of the Immigration Judge denying asylum is overturned.

FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the Department of Homeland Security the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. § J003.47(h).

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.. U.S. Department of Justice Executive Office for Immigration Review


File: - Boston, MA

In re:


APPEAL

Decision of the Board of lmmigrdtion Appeals

Date: DEC :; t 2015



The respondent, a native and citizen of Tanzania, has appealed from the Immigration Judge's April 24, 2014, decision denying her application for asylum under section 208(a) of the Immigration and Nationality Act, 8 U.S.C. § I I 58(a), as well as withholding of removal and protection under the United Nations Convention Against Torture ("CAT"). See section 241(b)(3) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16-18. For the following reasons, the record is remanded.

We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met their burden of proof, and issues of discretion. 8 C.F.R. § 1003.l(d)(3)(ii). Because the respondent's application was filed after May 11, 2005 (Exh. 2), it is governed by the provisions of the REAL ID Act. See Matier ofS-B-, 24 I&N Dec. 42 (BIA 2006).

The Immigration Judge found that the respondent was not credible because she lied to a consular officer to obtain her visa and lied to an immigration official during her secondary inspection at the airport (I.I. at 5-6). Based on the doctrine of"falsus in uno, falsus in omnibus", see Liu v Holder, 714 F.3d 56, 61 (I" Cir. 2013), citing Castaneda-Castillo v. Gonzales. 488 F.3d 17, 23 n. 6 (I" Cir. 2007), the Immigration Judge found that the respondent's testimony was false in one thing and so "false in everything and this adverse credibility determination goes to her three applications for relief ... " I.I. at 6.

We agree with the respondent that the Immigration Judge should not have relied on misrepresentations made to the consular officer in order to leave Tanzania. Matter of 0-D-, 21 l&N Dec. 1079, 1081(BIA1998). See Yongo v. INS. 355 F.3d 27, 33 (1 51 Cir. 2004) ("A lie by a fleeing victim to a tyrant's border guard is not the same as a lie under oath in an INS proceeding about the circumstances of persecution.") Further the trier of fact may, considering the totality of the circumstances, base a credibility finding on an asylum applicant's demeanor, the plausibility of her account, and inconsistencies in statements, without regard to whether they go to the heart of the asylum claim. Matier of J-Y-C-, 24 I&N Dec. 260 (BIA 2007). Here, the respondent's misrepresentations during her secondary inspection did not go to the heart of her claim so the Immigration Judge should have considered the totality of the circumstances. We

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therefore find it necessary to remand the record so that the Inunigration Judge may further consider of the respondent's credibility based on the totality of the circumstances.

Moreover, the respondent correctly argues that, even if the respondent's testimony was not credible, the Immigration Judge was required to consider her corroborating evidence and assess whether this evidence independently established a basis for asylum. See Piedrahita v. Mukasey, 524 F.3d 142, 145 (1 51 Cir. 2008); Diab v. Ashcroft, 397 F.3d 35, 40 (I" Cir. 2005). Accordingly, the following order shall be issued.

ORDER: The record is remanded for further proceedings with respect to asylum, withholding ofremoval, and protection under the Convention Against Torture.

FOR THE BOARD

2

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U.S. Department of Justice Executive Office for ~mmigration Review



File: - Oklahoma City, OK Date:

In re: DEC 3 I Z015


APPEAL



The respondent, a native and citizen of Guatemala, appeals an Immigration Judge's decision dated April JO, 2014, which denied her applications for asylum and withholding of removal under sections 208(b)(l)(A) and 24J(b)(3)(A) of the Immigration and Nationality Act (the"Act"), 8 U.S.C. §§ 1158(b)(J)(A) and 123l(b)(3)(A), and for protection under the Convention Against Torture ("CAT") pursuant to 8 C.F.R. § 1208.16(c)(2). The Department of Homeland Security ("OHS") has not filed a brief in opposition to the appeal. The record will be remanded for further proceedings.

We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.J(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. § 1003.l(d)(3)(ii). Since the asylum application was filed after May 11, 2005, it is governed by the provisions of the REAL ID Act. Afatter ofS-B-, 24 I&N Dec. 42 (BIA 2006).

The respondent claims that she was persecuted by members of her family based on her membership in the particular social groups of "young Guatemalan women in domestic relationships who are unable to leave" and "young Guatemalan women in domestic relationships without effective familial protection" (I.J. at 7-8; Tr. at 19-21). Although the InunigrationJudge determined that the respondent's particular social groups did not constitute cognizable particular social groups, and that she had not demonstrated a nexus to her claimed particular social groups, we subsequently issued Matter ofA-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (discussing domestic violence in particular social group determinations), which may have an impact on the respondent's case.

If the respondent meets her burden of proof for showing past persecution, the Immigration Judge should detem1ine whether the DHS met its burden to show that the respondent could avoid persecution by relocating and that it would be reasonable to expect her to do so. See 8 C.F.R. §§ 1208.13(b)(l)(i)(B), (ii). Since the respondent is claiming harm at the hands of private actors, the Inunigration Judge should also consider whetlter the government will be unable or unwilling to control the private actors in question. See Matter of E-A-G-, 24 I&N Dec. 591, 598 (BIA 2008); Matter of A-M-, 23 I&N Dec. 737, 741 (BIA 2005). On remand, tlte parties should have the opportunity to update the record, and to make any additional legal and factual

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arguments regarding particular social group and nexus as they may apply to this case. The Board expresses no opinion regarding the ultimate outcome of these proceedings.



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In re:


APPEAL


Date:


APPLICATIONS: Asylum; withholding ofremoval; Convention Against Torture

. The respondent has appealed from the Immigration Judge's decision dated May 30, 2014, denying the respondent's applications for asylum and withholding of removal under sections 208 and 241 (b )(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231 (b )(3), and for protection under the Convention Against Torture. The appeal will be sustained and the record will be remanded.

We review findings of fact, including credibility findings and determinations as to the likelihood of future events, under the "clearly erroneous" standard. See 8 C.F.R. § 1003.l(d)(3)(i); see also Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012); Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007). We review questions of law, discretion, or judgment, and all other issues de novo. See 8 C.F.R. § 1003. I(d)(3)(ii). Because the respondent's Application for Asylum and for Withholding of Removal (Form 1-589) was filed on or after May 11, 2005, it is subject to the provisions implemented by the REAL ID Act of 2005, Pub. L. No. I 09-13, Div. B, 119 Stat. 231.

In support of his request for asylum, the respondent alleges that he suffered past persecution and has a well-founded fear of future persecution in India based on his membership in the Shiromani Akali Dal Mann Party (SADM). The respondent testified that members of the ruling Congress Party, which opposes the SADM Party, attacked the respondent at least three times in 2010 and 2011, based on his SADM Party membership (l.J. at 3; Tr. at 14). He also asserts that the police detained and beat him on account of his SADM Party membership. The first time he was attacked, in 2010, the respondent testified that he was approached by members of the Congress Party after he attended a SADM Party rally, and two members started beating him and told him to give up the SADM Party and join the Congress Party (I.J. at 3, Tr. at 15). Next, on , 2010, after another SADM Party rally. six Congress Party members approached the respondent and began beating him with cricket bats (l.J. at 7; Tr. at 19). The respondent went home after this incident and told his father what had happened and told him that he was a member of the SADM Party, w'hich his father had not known. In response, the respondent's father slapped him and kicked him out of the house for the night. The next day he spent at home after his mother let him in the house, and the following day, , 2010, the respondent went to the hospital for treatment for his injuries, and remained in the hospital for two days (Tr. at 19-20). The respondent's mother filed a police report about this incident.

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On , 2011, after a SADM Party meeting, the respondent kidnapped by Congress Party members and beaten until he passed out (l.J. at 6; Tr. at 22). \\'hen he woke up, he was tied to a chair and four individuals beat him until he again passed out. When he awoke the following day, he was warned to give up his SADM Party membership, or he would lose his life (Tr. at 22). Upon returning home, the respondent's father beat him again, and would not allow him to go to the hospital. After one day, his mother took him to the hospital, where he stayed for three days. One month later, the respondent was leaving the SADM Party office, and police officers pulled the respondent into their car, took him to the police station, locked him up, and beat him until he passed out (Tr. at 23). The police told him that he had been "warned." The respondent tried to return home, but his father would not allow him in the house. The police again detained the respondent and an officer told him that he was advised to give up the SADM Party, but he did not heed the warning (Tr. at 24 ). The police detained the respondent for one week and beat him daily. \\'hen he was released, he contacted a travel agent and made arrangements to leave India. He arrived in the United States on , 2012, after passing through six countries (l.J. at 1, 4-5; Tr. at 26).

Upon de novo review, we reverse the Immigration Judge's determination that the respondent did not demonstrate by clear and convincing evidence that his asylun1 application was filed within I year of the date of his arrival in the United States (I.J. at 4-5). See section 208(a)(2)(B) of the Act; 8 C.F.R. § 1208.4(a)(2)(i)(A). Specifically, and for the reasons that follow, we conclude that the respondent presented credible testimony in support of his asylum claim. We find that the respondent established, through his credible testimony and corroborating evidence, that the June 7, 2012, filing of his asylum application occurred within I year of the date on which he arrived in the United States, , 2012. The record contains no evidence to suggest otherwise.

Moreover, we note that the Immigration Judge did not specifically find that the respondent's testimony with respect to his entry in the United States not credible. \\'hen asked why the respondent did not have a copy of his passport, he stated that the smugglers he hired to take him to the United States took the passport from him in Guatemala (l.J. at 4-5; Tr. at 39). The Immigration Judge specifically noted that this explanation was plausible (l.J. at 5). Finally, although the Immigration Judge noted in the decision that the respondent offered no evidence of his exit from India, or his travel through the six countries before arriving in the United States, we note that the Immigration Judge did not provide the respondent with an opportunity to explain why such evidence was not presented, and the Immigration Judge did not explain why it was reasonable to expect such corroboration. See Ming Shi Xue v. BIA, 439 F.3d 111, 122 (2d Cir. 2006) (Immigration Judge must provide asylum applicant with meaningful notice" so that he has "an opportunity to remedy the supposed evidentiary gap", and Immigration Judge must explain why it is reasonable to expect such corroboration).

Turning to the respondent's asylum claim, and upon review of the record, we find that the Immigration Judge's adverse credibility determination is clearly erroneous (l.J. at 5-9). See 8 C.F.R. § 1003.l(d)(3)(i). The Immigration Judge based his adverse credibility determination on discrepancies between the respondent's testimony, his written statement, and the statement submitted by the respondent's mother. The Immigration Judge found that the respondent testified that after the 2010, incident. he was home for one day and then hospitalized

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for two days (l.J. at 7-8). However, in his written statement, the respondent did not mention his hospitalization follov.<ing the incident and rather stated that the day after the incident, he went to talk to party members (l.J. at 7-8). When asked to explain this, the respondent stated that he did not remember all the details at the time of his written statement, and further stated that he went to talk to party members after his release from the hospital (Tr. at 32-33). The Immigration Judge also found that while the respondent testified that after the 2011, incident, he remained home for one day before going to the hospital, in his written statement, the respondent does not mention his hospitalization and rather states that he had a fever and could not get out of bed for a week (l.J. at 6). When asked to explain, the respondent testified that he remained home for one day, went to the hospital, and came home with a fever and remained in bed for a week (l.J. at 6-7; Tr. at 35-36). Finally, the Immigration Judge noted that the respondent's mother's affidavit omitted the 2010, incident and did not mention that the respondent was hospitalized following the 2011, incident, and did not include other details regarding the incident, specifically that the respondent was detained for 24 hours (l.J. at 7-8).

Despite the apparent discrepancies and the omissions identified, the record supports the respondent's appellate assertion that his testimony was generally consistent regarding the harm he suffered in India on account of his SADM Party membership. Moreover, with respect to the respondent's hospitalizations, we note, as did the Immigration Judge, that the respondent presented documentary records of both hospitalizations (l.J. at 3, 8; Exh. 3). The authenticity of these medical records was not questioned and. both were admitted into evidence without objection. Thus, in light of the testimony as a whole, and the record of evidence, we find the respondent's explanations for the apparent discrepancies reasonable, and we further find that that the omissions from the respondent's asylum application are insufficient to support the Immigration Judge's adverse credibility finding. See Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006) (holding that an asylum applicant is not required to set forth all of his reasons for fearing return to his home country on the asylum application and omission of persecutory incidents from that application are not necessarily fatal to his claim); see also Zhi Wei Pang, v. Bureau of Citizenship and Immigration Services, 448 F.3d I 02, 112 (2d Cir. 2006) quoting Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003) (minor omissions from an asylum application are insufficient to support an adverse credibility finding because '"the circumstances surrounding the application process do not often lend themselves to a perfectly complete and comprehensive recitation of an applicant's claim to asylum or withholding, and that holding applicants to such a standard is not only unrealistic but also unfair."'); cf Diallo v. Gonzales, 445 F.3d 624, 629 (2d Cir. 2006) (observing that an Immigration Judge should explain, based on the record as a whole, why an applicant's testimony should be disbelieved in light of the inconsistencies and explanations offered).

Finally, while the respondent's mother's affidavit does not include every detail regarding the incidents of abuse against the respondent, we conclude that the document does not undermine the respondent's credibility inasmuch as the respondent provided credible testimony regarding the incidents and further provided separate corroboration regarding both his hospitalizations as well as the police report regarding the 2'010; incident. Exh. 3. Moreover, while the other affidavits submitted in support of the respondent's application are similar, as found by the Immigration Judge, such finding, without more, cannot support the Immigration Judge's adverse credibility finding. Cf Singh v. BIA, 438 F.3d 145, 148 (2d Cir. 2006) (upholding adverse

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credibility detennination where Immigration Judge correctly identified five independent grounds supporting adverse credibility detennination, one of which was that the applicant presented nearly identical affidavits in support of asylum application, and also).

In light of the foregoing, we find clear error in the Immigration Judge's adverse credibility detennination, as the inconsistencies and omissions observed do not support a finding that the respondent is incredible. See 8 C.F.R. § 1003.l(d)(3)(i); Matter of J-Y-C-, supra; see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (stating that the "totality of the circumstances" must support an adverse credibility finding and upholding such a finding based on "the cumulative effect" of inconsistencies).

Inasmuch as we find that the respondent's testimony was credible, we further conclude that the detentions and beatings the respondent suffered on account of his SADM Party membership at the hands of Congress Party members and the police, rises to the level of past persecution. See Baba v. Holder, 569 F .3d 79 (2d Cir. 2009) (holding that brutal treatment of alien, including repeated beatings, while imprisoned for his political party membership, rose to the level of past persecution). Because we hold that the respondent has established past persecution, he is presumed to have a well-founded fear of persecution on the basis of his original claim. See 8 C.F.R. § 1208.13(b)(l). In accordance with the pertinent regulatory framework, we conclude that the DHS should be afforded an opportunity to develop the record with respect to its burden to rebut the presumption that the respondent has a well-founded fear of persecution. See 8 C.F.R. § 1208.13(b)(l)(ii); Matter of D-1-M-, 24 I&N Dec. 448, 451 (BIA 2008). Therefore, we will remand the record to the Immigration Judge for further evaluation of the respondent's eligibility for asylum in light of the rulings in this decision.


ORDER: The appeal is sustained and the record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

Fo4THE~~

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U.S. Department of Justice Executive Otlice for Immigration Review



File: - New York, NY Date: JAN - 7 lu16

In re:

IN REMOV Al PROCEEDINGS

MOTION


APPLICATIONS: Reopening; remand

This case was last before us on July 30, 2013, when we denied the respondent's untimely second motion to reopen her removal proceedings. On , 2014, the United States Court of Appeals for the Second Circuit, pursuant to a stipulation of the parties, remanded this case to us for further consideration of the evidence presented in support of the respondent's asylum claim, which is based on the enforcement of the family planning policies in China.

In view of the stipulation and order, and the fact that it has now been over I 0 years since the last hearing in this case, we will reopen these proceedings and remand the record to the Immigration Judge for a further hearing consistent with the court's decision. On remand, the parties may present any updated evidence regarding the respondent's application for asylum based on the population control policies in China, or regarding any other relief from removal for which the respondent may be eligible. Accordingly, the following orders will be entered.

ORDER: The decision of the Board dated July 30, 2013, is vacated.

FURTHER ORDER: The respondent's motion to reopen is granted and the record is remanded to the Immigration Judge for further proceedings consistent with this opinion and for the entry of a new decision.

FOR THE BOARD

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· U.S. Department of Justice Executive Office for Immigration Review


Falls Church, Virginia 2204 1

File: - San Francisco, CA Date: JAJ~ - 6 2G15 In re:


APPEAL AND MOTION


CHARGE:


APPLICATION: Cancellation of removal; asylum; withholding of removal; Convention Against Torture; remand

This case was last before the Board on December 13, 2010, when we remanded proceedings to the Immigration Judge in order for him to consider the respondent's application for cancellation of removal. The respondent, a native and citizen of Mexico, currently appeals an Immigration Judge's decision dated June 11, 2014, pretermitting his application for cancellation of removal and ordering him removed. The respondent also seeks to remand proceeding in order to apply for withholding of removal. The record will be remanded for further proceedings.

The record indicates that the respondent was convicted of possession of drug paraphernalia pursuant to California Health and Safety Code§ 11364 (I.J. at 1). The Immigration Judge found that the respondent did not establish his eligibility for cancellation of removal as the respondent did not present evidence to show that his conviction for possession of drug paraphernalia did not involve a controlled substance (I.J. at 4).

Subsequent fo the filing of the respondent's appeal brief, the United States Supreme Court issued its decision in Mellouli v. Lynch, 135 S.Ct. 1980 (June 1, 2015), holding that a drug paraphernalia conviction must relate to a controlled substance as defined in section 102 of the Controlled Substances Act ("CSA"), 21 U.S.C. § 802, to qualify as a controlled substance violation under section 23 7(a)(2)(B)(i) of the Act. See also Madrigal-Barcenas v. Lynch, 797 F.3d 643 (9th Cir. 2015) (alien's misdemeanor Nevada conviction for possessing drug paraphernalia was not categorically for controlled substance offense, and thus did not necessarily render him ineligible for cancellation of removal, where Nevada statute penalized possession of paraphernalia in connection with substances that were not controlled under federal law). In light of the Supreme Court's decision in Mellouli v. Lynch , we find that a remand is warranted in order for the Immigration Judge to reevaluate the respondent's eligibility for cancellation of

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removal and to consider any other relief which the respondent may be eligible to pursue. 1 On remand, the parties will be given the opportunity to raise any other issues which are relevant in the instant case.


ORDER: Tue record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

1 Based on our resolution in this matter, we will decline at this time to address the respondent's ineffective assistance of counsel claim.

2

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' U.S. Department of.Justice Executjve Offic~ for Immigration Review



File: - Baltimore, MD Date:

In re:


APPEAL


ON BEHALF OF DHS: Carrie E. Johnston Senior Attorney

CHARGE:

JAN 2 7 2016



The respondent, a native and citizen of El Salvador, appeals the Innnigration Judge's June 13, 2014, decision denying her application for asylum. See section 208(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § l 158(b)(l)(A): 8 C.F.R. § 1208.13. The Immigration Judge granted the respondent's application for withholding of removal. See section 24l(b)(3)(A) of the Act, 8 U.S.C. § 123l(b)(3)(A); 8 C.F.R. § 1208.16. The Department of Homeland Security ("OHS") filed a motion for summary affirmance of the Immigration Judge's decision. The appeal v..111 be sustained, and the record will be remanded as set forth below.

We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. § 1003.l(d)(3)(ii). The respondent's application was filed after May 11, 2005, and therefore is governed by the provisions of the REAL ID Act. Matter of S-B-, 24 l&N Dec. 42 (BIA 2006).

The Innnigration Judge granted the respondent withholding of removal under the Act, fmding that the respondent demonstrated past persecution due to incidents in the past that occurred in El Salvador on account of the respondent's relationship to her mother, who was a key witness in a case involving a Salvadoran gang member and on account of the respondent's perceived status as a homosexual male (l.J. at 17). The Immigration Judge further held that the respondent has demonstrated a clear probability of future persecution in El Salvador on account of her membership in the particular social group of "'transgender women" (l..l. at 17-18). On appeal, the DHS does not challenge the Immigration Judge's grant of withholding of removal.

There is no dispute that the respondent filed her application for asylum more than 1 year after her date of entry into the United States. The sole issue on appeal is whether the

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Immigration Judge erred in concluding that the respondent did not demonstrate an exception to the filing requirement (l.J. at 14-16). An alien applying for asylum must demonstrate by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States. Section 208(a)(2)(B) of the Act; 8 C.F.R. § 1208.4(a)(2). An applicant for asylum who fails to file within 1 year of arrival in the United States must demonstrate either "changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application .... " Section 208(a)(2)(D) of the Act, 8 C.F.R. §§ 1208.4(a)(2), (4), (5). Extraordinary circumstances refer to factors that directly relate to the failure to timely file. 8 C.F.R. § 1208.4(a)(5). These factors may include a "serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the I-year period after arrival." Id The applicant must file an asylum application within a reasonable amount oftime given the existence of those circumstances. Id

On appeal, the respondent argues that she demonstrated an exception to the filing requirement. We agree. Specifically, we conclude that under the specific circumstances presented in the instant case, the respondent has demonstrated extraordinary circumstances that directly relate to her failure to timely submit an asylum application (Respondent's Br. at 13-17). See 8 C.F.R. § 1208.4(a)(5). This conclusion is supported by the lengthy psychological assessment in the record, the detailed testimony presented by the psychologist who diagnosed the respondent, and the testimony of respondent herself (Exh. 3, tab H; Tr. at 22-33, 49-55, 61-62, 64-67, 97-99, 125-26). Moreover, we further conclude that, in light of those circumstances, the respondent filed her asylum application within a reasonable period of time. As we conclude that the respondent merits an exception to the filing requirement and as the record does not indicate the presence of any significant negative discretionary factors, we conclude that the respondent is eligible for asylum. Accordingly, the following orders will be entered.



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• Falls Church, Virginia 2204 J



Date:

In re:


APPEAL


CHARGE:


APPLICATION: Asylum; withholding of removal

The respondent, a native and citizen of El Salvador, appeals from the July 9, 2014, decision of the Intmigration Judge which denied her applications for asylum under section 208(a) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a), and withholding of removal under section 24l(b)(3)(A) of the Act, 8 U.S.C. § 123l(b)(3)(A).

In her decision, the Intmigration Judge found that the respondent was not credible (l.J. at 6-8). The Immigration Judge did not give the respondent the opportunity to explain the discrepancies on which she relied, however. See Garcia v. Holder, 749 F.3d 785, 790 (9th Cir. 2014) (Immigration Judge must give the asylum applicant an opportunity to explain any discrepancies or inconsistencies that form the basis of a denial of asylum). Further, although the Immigration Judge asked the respondent to speculate as to her abusers' motive and identified omissions, such grounds are not usually sufficient to support an adverse credibility finding. Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014) ("Omissions are generally less probative of credibility than inconsistencies created by direct contradictions in evidence and testimony"); Bandari v. INS. 227 F.3d 1160, 1167 (9th Cir. 2000) ("[T]he mere omission of details is insufficient to uphold an adverse credibility finding." ); Wenda Ge v. Ashcroft, 367 F .3d 1121, 1124 (9th Cir. 2004) ("[S]peculation and conjecture cannot form the basis of an adverse credibility finding.").

Therefore, we will remand for the entry of a new credibility finding. On remand, the parties should have the opportunity to make further arguments regarding credibility. We note that the respondent consistently stated in her asylum application and at the hearing that she was regularly abused by her domestic partner for several years, including while she was pregnant.

Regarding the Immigration Judge's determination that the respondent did not establish that she was harmed on accou11t of her membership in a particular social group, since the time of the

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· respondent's hearing, the Board has issued a decision addressing whether domestic violence can form the basis for an asylum claim. See Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (discussing particular social group in the context of cases involving domestic violence); see also Matter of M-E-V-G-, 26 l&N Dec. 227 (BIA 2014), and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) (clarifying what is required to establish a particular social group). These decisions may have an impact on the respondent's case, and warrant a remand. On remand, in addition to the need for further assessment of the respondent's credibility, the parties should be given the opportunity to present additional evidence and arguments regarding particular social group and nexus, as they may apply to this case.



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2

(b) (6)


Falls Chllrch, Virginia 22041

File: - Bloomington, MN


Date:

In re:


APPEAL


CHARGE:



The respondent, a native and citizen of Mexico, appeals the Immigration Judge's June 16, 2014, decision denying the respondent's application for asylum. See section 208 of the Immigration and Nationality Act, 8 U .S.C. § 1158; 8 C.F.R. § 1208.13. The Immigration Judge granted the respondent's application for withholding of removal. See section 24l(b)(3) of the Act, 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16. The appeal will be sustained.

The Board reviews an Immigration Judge's findings of fact, including credibility determinations and the likelihood of future events, under a "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i); Matter ofZ-Z-0-, 26 I&N Dec. 586 (BIA 2015). We review all other issues, including questions of law, judgment, or discretion, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii). The respondent's applications were filed after May 11, 2005, and therefore are governed by the provisions of the REAL ID Act. Matter of S-B-, 24 I&N Dec. 42 (BIA2006).

The Immigration Judge erred in fmding that the respondent did not demonstrate extraordinary circumstances sufficient to excuse the I-year filing deadline for asylum (I.J. at 5). First, the Immigration Judge clearly erred in finding that there was insufficient evidence to establish that the respondent's mental health conditions "existed prior to her being placed in removal proceedings and being faced with the possibility of removal" (I.J. at 5). The respondent testified credibly that, following her entry to the United States in or of 2008, she felt emotionally unwell and depressed and was unable to talk about her past harm with others (Tr. at 35-39). The respondent's therapist testified that it was her assessment that the respondent had experienced low energy, depression, irritability, anxiety, and avoidance since before she left Mexico, and the therapist's written assessment indicates that these symptoms made the respondent very vulnerable and negatively affected her ability to seek asylum in the United States (Tr. at 74; Exh. 7, Tab B, at 4). Although we acknowledge that the respondent did not begin seeing her current therapist until after her affirmative asylum application was referred to the Immigration Court and removal proceedings commenced, credible testimony and evidence of record demonstrates that the respondent began seeking mental health treatment at the same

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time she began taking steps to affirmatively apply for asylum, many months before she was placed in removal proceedings.

Second, we find that the respondent's application was filed within a reasonable period given the extraordinary circumstances of her mental health issues. The respondent credibly testified that she entered the United States around or of 2008, and she filed her affirmative asylum application approximately months later, on March 4, 2010 (l.J. at 2). The record demonstrates that during that time the respondent was socially isolated and experiencing symptoms of avoidance, anxiety, and depression that arose from her persecution in Mexico on account of her transgender identity. Once the respondent was able to access resources to help her begin to cope with her mental health and legal issues, she affirmatively filed her asylum application within a few months. We find this delay to be reasonable given these extraordinary circumstances, and we therefore reverse the Immigration Judge's finding that the respondent did not establish an exception to the I-year filing deadline. Because we find no error in the Immigration Judge's grant of the respondent's application for withholding ofremoval, which the Department of Homeland Security does not challenge on appeal, and because we find that the respondent has demonstrated that she is entitled to a discretionary grant of asylum, we will sustain the respondent's appeal and remand to the Immigration Judge for the entry of an order granting the respondent's application for asylum assuming successful completion of the required background checks. Given this result, we decline to address the remainder of the respondent's appellate arguments.



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2

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Decision of the 8-d of lmmigntion Appeals


File: - El Centro, CA Date:

In re:


APPEAL


ON BEHALF OF OHS: William P. Hollerich Assistant Chief Counsel

CHARGE:

JAN - 7 2016

Notice: Sec. 212(a)(7)(A)(i)(I), l&N Act (8 U.S.C. § l 182(a)(7)(A)(i)(I)] -Immigrant - no valid immigrant visa or entry document


The respondent has appealed the Immigration Judge's January 7, 2014, decision denying his motion to reopen proceedings. The record will be remanded.

The Immigration Judge's form order checks a box to indicate that "(t)he Court agrees with the reasons stated in the opposition to the Motion" and includes a handwritten notation stating "[t]he motion is nearly one year tardy. Respondent proposes no reason for tolling the time bar." We find that the Immigration Judge's decision is insufficient for our review as it does not adequately address the relevant facts and clearly set forth the Immigration Judge's legal conclusions. See Matter of A-P-, 22 l&N Dec. 468, 477 (BIA 1999) (stating that the Immigration Judge is "responsible for the substantive completeness of the decision"). In particular, although the respondent's motion does not explicitly so state, it is clear from the context of the entire motion and the supporting documents that he submits as an explanation for the untimely nab.Ire of the motion the fact that he suffered from post-traumatic stress disorder that was only recently diagnosed and treated. See generally Respondent's Motion at 3-4. He also was unrepresented at the time of his hearing below, and waived appeal, but has submitted a new asylum application prepared with the assistance of counsel. The respondent submitted documentation in support of his motion that the Immigration Judge did not mention in his decision. See Maner of S-H-, 23 l&N Dec. 462 (BIA 2002) (finding that because the Board's fact finding ability on appeal is limited, it is important for Immigration Judges to include in their decisions clear and complete findings of fact that are supported by the record and are in compliance with controlling law). We therefore find that the Immigration Judge's decision is insufficient for our review, but express no view as to whether the motion is meritorious.

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We note that the respondent submitted evidence on appeal. The Board does not consider evidence proffered for the first time on appeal. See Maller of Fednrenlw, I 9 I&N Dec. 57 (BIA I 984 ). As this matter is being remanded, we leave it to the Immigration Judge to consider this evidence, as appropriate.

Accordingly, the following order shall be entered:

ORDER: The record is remanded to the Immigration Judge for further action or proceedings consistent with the foregoing opinion, and for the entry of a new decision.

2

(b) (6)




File: Memphis, TN Date:

In re:


APPEAL


ON BEHALF OF DHS: Jamee Comans Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] -In the United States in violation of law

JAN - 8 2016


The Department of Homeland Security ("OHS") appeals the Immigration Judge's July 22, 2014, written decision granting the respondent's asylum application. The respondent, an Israeli native and Palestinian Authority citizen, has submitted a reply brief. The appeal will be dismissed.

We review the findings of fact, including the Inunigration Judge's determination of credibility, under a "clearly erroneous" standard. 8 C.F.R. § l003. l(d)(3)(i). We review all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008). Because the respondent's applications were filed after May 11, 2005, they are governed by the provisions of the REAL ID Act. See Matter of S-B-, 24 I&N Dec. 42 (BIA 2006). Credibility determinations under the REAL ID Act consider the totality of the circumstances, including, inter alia, the respondent's demeanor and candor, as well as the inherent plausibility of the testimony and its consistency with other statements and documentary evidence. See section 208(b)(l)(B)(iii) of the Immigration and Nationality Act (Act), 8 U.S.C. § l 158(b)(l)(B)(iii); Matter of J-Y-C-, 24 I&N Dec. 260, 262 (BIA 2007) (discussing credibility under the REAL ID Act).

With the following discussion below, we adopt and affirm the Immigration Judge's decision. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). We are not persuaded that the Immigration Judge's credibility determination is clearly erroneous. We give deference to the Immigration Judge's first-hand assessment of the respondent's demeanor, and we see no clear error in the Immigration Judge's conclusion that his testimony was credible, given the Immigration Judge's thorough analysis of the respondent's testimony and the supporting evidence (I.J. at 5-9). See Abdulahadv. Holder, 581F.3d290, 295 (6th Cir. 2009). (recognizing that Immigration Judges are in the best position to evaluate credibility in the context of an alien's demeanor).

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As the Immigration Judge fotmd, the respondent corroborated his employment "'ith tlie - as well

as the killing of his boss (l.J. at 15-16; Tr. at 63-65, 73-77, 80, 98-99, 152-53; Exh. 3). Further, we find no clear error with the Immigration Judge's conclusion that Hamas militants fired at the respondent's home resulting in a neighbor's death, particularly given the independent police report corroborating the attack and death (I.J. at 16; Tr. at l 15-17;Exh. 6).

Nor are we persuaded that the July 2011 United States Citizenship and Immigration Services' ("USCIS") partial - more than half is missing - report is sufficient evidence to refute the Immigration Judge's credibility determination (Exh. 10). And while the USCIS officer recommended a formal investigation, there is no indication of the investigation's results.

Because we do not find the Immigration Judge's credibility finding clearly erroneous, we agree that the respondent met his burden to warrant asylum. Accordingly, the following orders will be issued.

ORDER: The appeal is dismissed.


~SJPL-· ---FOR THE BOARD

2

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, ·U.S. Department of Justice Executive Office for Immigration Review

Falls Clmrch, Virginia 22041

File: -Anchorage, AK

In re:


APPEAL


ON BEHALF OF DHS: Sarah K. Barr Assistant Chief Counsel

Decision of the Board oflmroigration Appeals

Date: JA.N - 4 2~15

APPLICATION: Special rule cancellation of removal under NACARA; Convention Against Torture

The respondent, a native and citizen of El Salvador, has appealed from the Immigration Judge's July 23, 2014, decision denying the applications for special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NA CARA), Pub. L. No. I 05-100, tit. JI, 111 Stat. 2160, 2193, 2196 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997), and protection under the Convention Against Torture (CAT), 8 C.F.R. § 1208.16. The Department of Homeland Security ("DHS") has submitted a brief in support of the Immigration Judge's decision. The record will be remanded for inclusion of a complete decision in this case and for certification of the record to the Board thereafter.

The record does not contain a separate oral or written decision addressing the respondent's applications for special rule cancellation of removal under NACARA, and protection under the Convention Against Torture (CAT), as implicitly required by 8 C.F.R. § 1003.37 and 1240.12. Nor does the Immigration Judge's signed order comply with the requisites for a summary decision rendered in accordance with 8 C.F.R. § 1240.12(b). See Matter of A-P-, 22 I&N Dec. 468, 470-73 (BIA 1999); see also Tr. at 41-43, 134-35. The transcript contains several embedded statements in different parts of the transcript concerning the respondent's removability and his applications for relief, and we observe that the Immigration Judge did not address the evidence submitted by the Department of Homeland Security regarding the respondent's criminal record. See Tr. at 67; 77-79; Exh. 8. Consequently, the Immigration Judge's statements included in the transcript do not negate the need to remand the record for the issuance of a separate oral or written decision. See generally }.latter of S-H-, 23 I&N Dec. 462 (BIA 2002) (emphasizing the need for Immigration Judges to include in their decisions clear and complete findings and analysis that are in compliance with controlling law, in view of this Board's inability to conduct fact finding on appeal); lvlatter of A-P-, supra. We therefore will remand the

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and his applications for relief, and we observe that the Immigration Judge did not address the evidence submined by the Department of Homeland Security regarding the respondent's criminal record. See Tr. at 67; 77-79; Exh. 8. Consequently, the Immigration Judge's statements included in the transcript do not negate the need to remand the record for the issuance of a separate oral or written decision. See generally Matter of S-H-, 23 I&N Dec. 462 (BIA 2002) (emphasizing the need for Immigration Judges to include in their decisions clear and complete findings and analysis that are in c-0mpliance with controlling law, in view of this Board's inability to conduct fact finding on appeal); Matter ofA-P-, supra. We therefore will remand the record for the issuance of a separate oral or \Vritten decision. 1 See generally Afatter of A-P-, supra; 8 C.F.R. § 1003.l(d)(3)(i). Accordingly, the following order shall be entered.

ORDER: The record is remanded to the Immigration Court for inclusion of a complete decision in this case and for certification of the record to the Board thereafter.

FOR THEBO

We note that the Board recently issued a decision regarding special rule cancellation of removal, although it does not appear to be applicable in this matter as the respondent's eligibility is pursuant to 8 C.F.R. § 1240.66(b). See Matter of Castro-Lopez, 26 I&N Dec. 693 (BIA 2015) (finding the 10 years of continuous physical presence required by 8 C.F.R. § 1240.66(c)(2) (2015) for aliens seeking special rule cancellation of removal under section 203 of NACARA should be measured from the alien's most recently incurred ground of removal, at least where that ground is among those listed in 8 C.F.R. § 1240.66(c)(l)).

2

(b) (6)

U:S. Department of Justice Executive Office for Immigration Review



In re:


APPEAL


Date: JAN 1 4 2ll15


CHARGE:

Notice: Sec. 212(a)(7)(A)(i)(I), l&N Act [8U.S.C.§l182(a)(7)(A)(i)(I)] -Immigrant - no valid immigrant visa or entry document


The respondent, a native and citizen of India, has appealed the Immigration Judge's decision dated August I 1, 2014, denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. See sections 208(b)(I) and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ l 158(b)(I), 1231(b)(3); 8 C.F.R. § 1208.16(c). The record will be remanded.

We review the findings of fact made by the Immigration Judge for clear error. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including questions of judgment, discretion, and law, de novo. 8 C.F.R. § 1003. l(d)(3)(ii). The respondent's applications for relief were filed after May 11, 2005, and are therefore governed by the REAL ID Act. See Matter of S-B-, 24 I&N Dec. 42 (BIA 2006).

We will reverse the Immigration Judge's determination that the respondent has not demonstrated that the Indian government was unable or unVllilling to protect him from members of the Congress Party (l.J. at 6-7). See Rahimzadeh v. Holder, 613 F.3d 916, 920 (9th Cir. 2010) (stating that an applicant bears the burden of establishing that the government would be unwilling or unable to prevent his persecution). The respondent credibly testified that he attempted to report the , 2012, assault that he experienced by members of the Congress Party to the police on , 2012, and that they refused to take a report against Congress Party members and said that they would not provide protection to a member of his own political party (l.J. at 3; Tr. at 18, 25). He also stated that this particular police station was the only one with jurisdiction over this matter (Tr. at 25-26). Nevertheless, the Immigration Judge concluded that the respondent had not met his burden of demonstrating that the Indian government was unable or unwilling to protect him because he had not presented country conditions evidence demonstrating a current connection between the police and the Congress Party or showing that the police "routinely refuse to take reports involving Congress Party members" (l.J. at 6-7).

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"The reporting of private persecution to the authorities is not ... an essential requirement for establishing gove=ent unwillingness or inability to control" persecution. Ornelas-Chavezy. Gonzalez, 458 F.3d 1052, 1057 (9th Cir. 2006). "At the same time, when an alien attempts to report persecution to the police or request protection from them, the authorities' response (or lack thereof) to such requests may provide powerful evidence with respect to the gove=ent's willingness or ability to protect the requester." Afriyie v. Holder, 613 F .3d 924, 931 (9th Cir. 2010); see also Faruk v. Ashcroft, 378 F.3d 940, 944 (9th Cir. 2004) (holding that the record compelled a finding of unwillingness to protect the petitioners where the aliens requested assistance from police but received none); Singh v. INS, 94 F.3d 1353, 1360 (9th Cir. 1996) (holding that where police refused to investigate after an attack was reported to them, the record compelled finding that police were unwilling to protect the alien). Given the respondent's credible testimony that he reported his assault by Congress Party members and that the police refused to assist him or take a report, we conclude that he has met his burden of demonstrating that the police was unable or unwilling to protect him.

Accordingly, we will remand the record to the Immigration Judge to determine whether the respondent experienced past persecution and whether he has a well-founded fear of persecution on account of a protected ground.


2

(b) (6)

U,S. Department of Jnstice Executive 6ffice for Immigration Review



In re:


APPEAL AND MOTION

Decision of the Board oflmrnigration Appeals

Date:

JAN i G 2316


CHARGE:

Notice: Sec. 237(a)(2)(A)(i), I&N Act [8 U.S.C. § l 227(a)(2)(A)(i)] -Convicted of crime involving moral turpitude (withdrawn)

Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] -Convicted of aggravated felony under section 101 (a)( 43)(F) of the Act

APPLICATION: Asylum; withholding of removal; Convention Against Torture; remand

The respondent, a native and citizen of Zambia, appeals the Immigration Judge's July 28, 2014, decision finding the respondent removable and denying the respondent's application for asylum. 1 See section 208 of the Immigration and Nationality Act, 8 U .S.C. § 1158; 8 C.F.R. § 1208.13. The Immigration Judge granted the respondent's application for withholding of removal. 2 See section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.J 6. Subsequent to filing her appellate brief, the respondent also filed a "Motion to Accept Supplemental Brief," requesting that we reverse the Immigration Judge's decision finding the respondent removable and remand proceedings to the Immigration Judge. The motion will be granted, in part, and the record will be remanded.

We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. § 1003.l(d)(3)(ii). The respondent's application was filed after May 11, 2005, and therefore is governed by the provisions of the REAL ID Act. Mauer of S-B-, 24 I&N Dec. 42 (BIA 2006).

1 After conducting a competency inquiry, the Immigration Judge concluded that the respondent was competent (Tr. at 65-68; I.J. at 9-12). We note that no issues regarding the respondent's competency or issues pertaining to her mental health have been raised on appeal. See Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011).

2 On appeal, the Department of Homeland Security ("OHS") has not challenged the Immigration Judge's decision to grant the respondent withholding of removal.

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The Immigration Judge found the respondent removable for having been convicted of an aggravated felony under section IOl(a)(43)(F) of the Act, 8 U.S.C. § 110l(a)(43)(F), as her conviction for burglary in violation of section 459 of the California Penal Code constitutes a "crime of violence" under 18 U.S.C. § 16(b) as it is an "offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 16(b ).

In her motion to remand, the respondent states that subsequent to the Immigration Judge's decision finding that the respondent had been convicted of an aggravated felony under section 10l(a)(43)(F) of the Act, an intervening decision of the United States Court of Appeals for the Ninth Circuit calls into question the propriety of this finding. During the pendency of this appeal, the Ninth Circuit invalidated 18 U.S.C. § 16(b) on constitutional grounds. See Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). In light of the holding in Dimaya, we conclude that remand is warranted to allow the Immigration Judge to consider the impact of this decision on the instant case in the first instance.

In light of our disposition of this case, we need not reach the remaining arguments raised on appeal at this time. As we are remanding proceedings, and in light of the evolving legal precedent, both parties shall be allowed to present additional evidence and legal arguments before the Immigration Judge on remand. Accordingly, the following orders will be entered.

ORDER: The motion to remand is granted, in part.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and entry of a new decision.

_f)·~ . FOR THE BOARD

2

(b) (6)

, .·

U.S. Department of Justice Decision of the Board of Immigration Appeals · ~ve Office for lmmipion Review

Falls Chureh, Virginia 2204 I

File: - Arlington, VA Date:

In re:


APPEAL


ON BEHALF OF OHS: Nicole Schroeder Assistant Chief Counsel

CHARGE:

Notice: Sec. 212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. § l 182(a)(7)(A)(i)(I)) • Immigrant - no valid immigrant visa or entry document


The respondent, a native and citizen of the Democratic Republic of the Congo ("DRC''), has timely filed an appeal of an Immigration Judge's decision dated August 4, 2014. The Immigration Judge found the respondent removable as charged, and denied her applications for asylum and withholding of removal pursuant to sections 208 and 241(b)(3) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. §§ 1158 and 123l(b)(3), respectively. However, he granted her application for protection under the Convention Against Torture pursuant to 8 C.F.R. § 1208.16(c)(2). The respondent's request for oral argument before this Board is denied. See 8 C.F.R. § 1003.l(e). On appeal, the respondent contests the denial of asylum and withholding of removal under section 24l(b)(3) of the Act The appeal will be dismissed, and the record will be remanded for a required background check.

The Board reviews an Immigration Judge's findings of fact, including credibility determinations and the likelihood of future events, under a "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i); Maner of Z-Z-0-, 26 l&N Dec. 586 (BIA 2015). We review all other issues, including questions of law, judgment, or discretion, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii).

We affirm the Immigration Judge's conclusion that, while the respondent is credible, she has not sustained the burden of proof for asylum and withholding of removal because she did not establish past persecution or a well-founded fear or clear probability of persecution in the DRC (l.J. at 5-7). See sections 208(a), 24l(b)(3) of the Act; see also 8 C.F.R. §§ 1208.13(b), 1208.16(b). The respondent was born in the DRC in 1987, but left that country with her family at age to go to Burundi (l.J. at 3; Tr. at 34-35). The respondent returned to the DRC to attend school in 2001, remaining there until she graduated in 2005, at which time she returned to Burundi to attend university (l.J. at 4; Tr. at 37-38). After returning to Burundi, the respondent was gang raped on three occasions by members of the a youth group of the ruling

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party in Burundi (l.J. at 4; Tr. at 45-49). Fearing the she left Burundi and came to the United States in 2013 (l.J at 4; Tr. at 49-50).

On appeal, the respondent does not challenge the Immigration Judge's finding that she did not experience past persecution in the DRC, 1 as she was never hanned or threatened with hann for any reason in that country (l.J. at 5). However, she challenges the Immigration Judge's finding that she did not establish a well-founded fear of persecution on account of her proposed particular social group of "young, unmarried women who are viewed as foreigners, are failed asylum seekers, and have no political, family, or community ties." We agree with the Immigration Judge that the respondent has not shown that this constitutes a cognizable particular social group (l.J. at 6-7). Specifically, we agree that the proposed social group does not have the requisite "immutability," "particularity" or "social distinction" necessary to constitute a "particular social group." See Matter of M-E-V-G-, 26 l&N Dec. 227 (BIA 2014); Matter of WG-R-, 26 l&N Dec. 208 (BIA 2014).

As correctly observed by the Immigration Judge, many of the defining characteristics of the respondent's proposed particular social group, including youth, marital status, and lack of political, family, or community ties, are not immutable, but instead are subject to change (l.J. at 6). See, e.g., Zelaya v Holder, 668 F.3d 159 (4th Cir. 2012) (stating that persecution on account of membership in a particular social group means ''"persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic [ ,] ... one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences," citing Matter of Acosta, 19 l&N Dec. 211, 233 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 l&N Dec. 439 (BIA 1987) (internal quotation marks omitted). In addition, we agree that the defining feature of being ''viewed as a foreigner" is simply too vague and amorphous to satisfy the requirement of particularity, in part because, other than language, the respondent has not identified any objective criteria for determining whether or not a person would be viewed by Congolese society as "a foreigner" (I.J. at 6). See Matter of M-E-V-G- at 240. Finally, and perhaps most importantly, we agree 'l\ith the Immigration Judge that the respondent has not established that members of her proposed particular social group are socially distinct within Congolese society (l.J at 6). See Matter of M-E-V-G- at 240.

On appeal, the respondent asserts that the Immigration Judge erred in not assessing whether the respondent has a well-founded fear of persecution on account of her political opinion, actual or imputed (Respondent's Appeal Brief at 20). However, she has not established that any members of the lmbonerakure that may be in the DRC are aware of her experiences in Burundi, or explained how they would otherwise impute any political opinion to her. Notably, when asked if the were in the DRC, the respondent stated that she did not know (Tr. at

1 The Immigration Judge properly considered the respondent's asylum claim only as to the DRC. the country where the respondent is a citizen, and not Burundi, a country in which the respondent has no legal status, and to which the Department of Homeland Security ("OHS") has stated it is not seeking to remove the respondent ( I.J. at 5)

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51 ). While the respondent points on appeal to a single background article stating that in May 2014, approximately 200 members of the trained on the Congolese side of the DRC/Burundi border region, she has not indicated how they would be aware of the respondent's presence in the DRC, or asserted that these trainees interact with, much less persecute, the citizenry in the DRC (Tr. at 51; Exh. D, Tab 3 ).

In addition, while the respondent faults the Inunigration Judge for not considering whether she could receive "humanitarian asylum" based on the severity of her rapes in Burundi, the Immigration Judge properly did not consider this form of relief, as there is no dispute that these incidents did not occur in Congo, the country from which she seeks asylum protection. 8 C.F .R. § 1208.13(b)(I )(iii)(B); Matter of Chen, 20 l&N Dec. 16 (BIA 1989).

The OHS has not challenged the Immigration Judge's grant of protection under the Convention Against Torture. Accordingly, the following orders will be entered.

ORDER: The respondent's appeal is dismissed.


FOR THE BOARD ==

3

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File: - Baltimore, MD Date: JAN - ~ 2r,tJ"" I'\ ., ,o

In re:


APPEAL



The respondent, a native and citizen of Cameroon, appeals from the Immigration Judge's August 5, 2014, decision denying her application for asylum, withholding of removal, and protection under the Convention Against Torture. The record will be remanded for further proceedings consistent with this opinion, and for the entry of a new decision.1

As the respondent filed her asylum application in May 2011, this case is governed by the REAL ID Act of2005, Div. B of Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005). See Matter ofS-B-, 24 I&N Dec. 42 (BIA 2006) (applications filed on or after May 11, 2005, are subject to the credibility standard of the REAL ID Act). We find that the Immigration Judge's credibility analysis does not comport with the credibility standards of the REAL ID Act.

The Immigration Judge did not specifically identify any inconsistencies within the respondent's testimony or between her testimony and supporting documents. The concerns raised over the respondent's mother's and brother's affidavits and the medical records are not necessarily inconsistent with the respondent's testimony. While the affidavits do not specifically use the term arrested, both the mother's and brother's affidavits reflect that the respondent was taken from the house by police officers and raped. Further, while the medical record does not reflect that the respondent was sexually assaulted by police officers, it does support the respondent's claim that she was raped by more than one individual. The Immigration Judge also expressed concern over the respondent's testimony about the circumstances surrounding her divorce. We conclude that the Immigration Judge's reasons for finding the respondent's testimony not credible are inadequate. The fact that the respondent "paid money under the table" to get a divorce, without more, does not provide a basis for disbelieving the respondent's testimony.

Considering that the Immigration Judge's credibility analysis does not confom1 to the dictates of the REAL ID Act, we will remand the record for the hnmigration Judge to analyze this case under the proper REAL ID Act standards. See Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007).

1 The respondent's fee waiver request is granted. See 8 C.F.R. § 1003.8(a)(3).

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If the respondent's testimony is found incredible, that finding will be properly supported in the new decision; if the testimony is deemed credible, it will be assigned the proper weight it deserves. On remand, the parties should also be provided the opportunity to present additional evidence/testimony regarding the aforementioned issues in this case. Accordingly, we will enter the following order.

ORDER: The record is remanded for further proceedings not inconsistent with this opinion, the entry of a new decision.

FOR THE BOARD

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' U.S.DepartnlelitofJaatice Executive O(fice for Immipion Review

Falls ChW'Ch, Virginia 22041

File: - Los Angeles, California

In re:


Appeal


Date:

JAN - 6 2015


APPLICATION: Asylwn; withholding of removal; Convention Against Torture

The respondent has appealed from the Immigration Judge's decision dated August 14, 2014, denying his applications for relief on the basis of an adverse credibility finding. The Department of Homeland Security bas not responded to the appeal. The record will be remanded to the Immigration Judge for further proceedings.

The respondent is a year old native and citizen of China. He is a Christian by religion. He arrived in the United States in of 2009 as a nonimmigrant exchange visitor. The respondent lived with a host family and completed high school in the United States. He filed an application for asylwn in June 2010 on the basis of a 7 day detention in China subsequent to his arrest at his place of worship in of2009.

The adverse credibility finding of the Immigration Judge was based on several factors: that the respondent provided more detail in his testimony than in the declaration submitted in support of his application (l.J. at pp. 12, 13, 16); that he did not reference his baptism in his declaration submitted in support of his application (l.J. at IS, 16); that he did not seek medical treatment after suffering beatings during the course of his interrogation and detention at the hands of the Chinese authorities or look at the injuries on his back (l.J. at p. 12, 14, IS); that he obtained his passport prior to his detention and that he did not have docwnentation to support his claim that his passport was sought in order to travel to Korea during his swnrner break from high school (l.J. at 16); and that he did not remember the surname of his host family or their street address, and that he did not share with them infonnation about his detention in China (l.J. at 17, 18).

The United States Courts of Appeals for the Ninth Circuit has found that an adverse credibility finding must be supported by specific, cogent reasons, and the· reasons for rejecting the testimony must bear a legitimate nexus to the rejection. Zahedi v. INS, 222 F.3d 11 S7 (9th Cir. 2000). Speculation and conjecture, or an unsupported assumption, cannot form the basis of an adverse credibility finding, which must instead be based on substantial evidence. Shah v. INS, 220, F.3d 1062 (2000); Salaam v. INS, 229 F.3d 1234 (9th Cir. 2000); A/rinmade v. INS, 196 F.3d 9SI (9'11 Cir. 1999); Lopez-Reyes v. INS, 79 F.3d 908 (9111 Cir. 1996). Although the Immigration Judge made an adverse credibility determination based in large part upon implausibility, (l.J. at 12-19), the Immigration Judge's credibility determination does not comply with the requirements of the Ninth Circuit Zahedi v. INS, supra; Salaam v. INS. supra. Specifically, a respondent's testimony is not per se lacking in credibility simply because it includes details that are not set forth in the asylwn application. Zamanov v. Holder, 649 F.3d 969 (9111 Cir. 2011) citing

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Smolniakova v Gonzales, 422 F.3d 1037 (9'h Cir. 2005); Lopez-Reyes v. INS. supra, citing Aguilera-Cota v. TNS, 914 F.2d 1375 (9th Cir. 1990). '·[T]he mere omission of details is insufficient to uphold an adverse credibility finding." Singh v. Gonzales, 403 F.3d 1081 (9'h Cir. 2005) citing Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000). Additionally, personal beliefs cannot be substituted for objective and substantial evidence. Bandari v INS, supra, citing Shah v. INS. supra And, whether or not a person seeks medical treatment is not determinative of whether the individual has suffered persecution. Quan v Gonzales, 428 F.3d 883 (9th Cir. 2005) citing Guo v. Ashcroft, 361 F.3d 1194 (9th Cir. 2004).

In these proceedings, the respondent's application for asylum and declaration in support thereof were consistent with his testimony which provided more detail. That he did not mention the date of his baptism on his declaration, or did not seek medical attention for his wounds, or did not manage to view the injuries on his back without more do not impeach his credibility. That he should have done so is personal conjecture on the part of the Immigration Judge and does not support an adverse credibility finding. Shah v. INS, supra, citing Lopez-Reyes v. INS, supra, at 912. Likewise, not germane to his credibility, as irrelevant to his claim, was the surname and street address of persons who hosted him in the United States during his senior year of high school, although the address where he lived was appropriately provided in his application for asylum. Similarly, that a respondent would not have in his possession materials to show that his parents intended for him, then a minor, to spend time in Korea between his junior and senior years in high school is an inappropriate basis upon which to impugn his credibility and not germane to his claim. It is speculative to assume that a respondent would never have considered travel outside his country of origin other than to seek asylum in the United States.

The adverse credibility finding of the Immigration Judge is not supported by the evidence of record. See He v. Ashcroft, 328 F.3d 593, 595 (9th Cir. 2003). The record is remanded to allow the parties to present further evidence regarding the respondent's credibility, his eligibility for relief and whether, if eligible, he merits relief in the exercise of discretion. See Matter of H-, 21 I&N Dec. 337 (BIA 1996); Matter of Chen. 20 I&N Dec. 16 (BIA 1989); Matter of Pu/a, 19 l&N Dec. 467 (BIA 1987).

The Board of Immigration Appeals has limited fact-finding ability on appeal, which heightens the need for Immigration Judges to include in their decisions clear and complete findings of fact that are supported by the record and are in compliance with controlling law. Matter of S-H-, 23 I&N Dec. 462 (BIA '.!002). It is important for the Immigration Judges to make comprehensive findings of fact rather than just those fmdings pertinent to one issue that the Immigration Judge may deem dispositive of the case. Id.

Accordingly. the following order will be entered.

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I ·

· ORDER: The record is remanded to the Immigration Court for further proceedings consistent with this decision and the entry of a new decision.

FOR HE BOARD

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U.S. Department of Justice Executive Office for Inunigration Review




Date:

In re:


APPEAL


CHARGE:

Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] -In the United States in violation of law (both respondents)


The respondents, natives and citizens of Indonesia, appeal the Immigration Judge's September 3, 2104, decision denying their application for asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158, and the lead respondent's application for withholding of removal under section 24l(b)(3) of the Act, 8 U.S.C. §§ 1158 and 123i(b)(3), and his request for protection under the Convention Against Torture ("CAT'), 8 C.F.R. §§ 1208.16-.18. 1 The record will be remanded.

We review an Immigration Judge's findings of fact, including findings regarding witness credibility, under a "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including issues of law, judgment or discretion, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii). See also Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012); Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015). As the respondent's asylum application was filed after May 11, 2005, it is governed by the provisions of the REAL ID Act.

The record supports the Immigration Judge's conclusion that the incidents of harm described by the respondent, which included an incident as a schoolchild when he was assaulted by native Indonesians, the looring of his family's store during the 1998 riots, the robbery of his watch by a neighbor of his sister, an assault on his parents in 2006, an attempted extortion by a person in his neighborhood, and an incident when a customer hit the respondent and made threats to harm the respondent, failed to rise to the level of persecution (I.J. at 4-6; Tr. at 46-48, 51, 54-55, 57-60, 71-72, 79-82). See Halim v. Holder, 590 F.3d 971, 975-976 (9th Cir. 2009) (finding that an applicant had failed to establish past persecution when he was stripped by students,

1 The lead respondent's wife is a derivative of his asylum application. References to "the respondent" will refer to the lead respondent.

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spat on, refused medical treatment, falsely arrested, and beaten by a mob); Wakkary v. Holder, 558 F.3d 1049, 1059-60 (9th Cir. 2009) (finding that an applicant failed to establish past persecution where he was beaten and robbed and accosted by a mob); Kohli v. Gonzales, 473 F.3d 1061, 1070 (9th Cir. 2007) (noting that persecution "is an extreme concept that does not include every sort of treatment our society regards as offensive). The respondent did not experience significant physical harm here and even considering the economic harm experienced by the respondent and his family, as he argues on appeal, we cannot find that the respondent's experiences establish persecution. See Zehatye v. Gonzales, 453 F.3d 1182, 1186 (9th Cir. 2006) (economic deprivation that did not threaten petitioner's life or freedom did not compel finding of past persecution); Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003); see also Matter of A-K-, 24 I&N Dec. 275 (BIA 2007) ( acts of persecution against family members do not establish a risk of persecution to the applicant himself, absent persecution tied to the applicant personally).

Further, the Immigration Judge did not commit legal error or clear factual error in determining that the respondent has not demonstrated that he more likely than not will suffer torture by or with the acquiescence of an official of the Indonesian government, including under the concept of concept of willful blindness, as required for protection under the CAT (I.J. at 7). See 8 C.F.R. §§ 1208.16(c) and 1208.18(a).

However, we agree with the respondent's contention on appeal that the Immigration Judge failed to provide a sufficient analysis of his claim for asylum and withholding ofremoval under a disfavored group theory (Respondent's Br. at 14-15); see Wakkary v. Holder, supra, at 1060. (finding that an asylum applicant may establish an objective risk of future persecution by showing that he will be singled out individually for persecution, i.e., under the disfavored group theory, or that there is a systematic pattern or practice of persecution against the group to which the applicant belongs); see also Lolong v. Gonzales, 400 F.3d 1215 (9th Cir. 2005); Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010). The Immigration Judge did not address the respondent's eligibility for asylum under a disfavored group theory, providing only the conclusory statement that "under any theory," whether as a member of a disfavored group or through a showing of pattern or practice, "the court cannot find that the respondent will be persecuted upon return to Indonesia" (I.J. at 6).

Based on these specific deficiencies in the Immigration Judge's decision, we find it necessary to remand the record. In rendering a new decision, the Immigration Judge should articulate the legal and factual findings related to the respondent's eligibility for asylum and withholding of removal under a disfavored group theory and a pattern or practice theory based on both the respondent's Chinese ethnicity and his Christian religion. 8 C.F.R. §§ 1003.l(d)(3)(i), (iv) (providing that the Board will not engage in de novo review of the Immigration Judge's findings of fact and will not engage in fact-finding in the course of deciding appeals); see generally Matter of S-H-, 23 I&N Dec. 462 (BIA 2002) (stating that Immigration Judges should include in their decisions clear and complete findings of fact that are supported by the record and are in compliance with controlling law). The Immigration Judge should also allow the parties to submit updated evidence related to country conditions.

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Finally we find meritless the respondent's argument that his due process rights were violated inasmuch as the Immigration Judge did not fail to act as a neutral fact-finder (Respondent's Br. at 6-7). The record does not support his contention that the Immigration Judge "attempted to prevent testimony in this case altogether" by having the respondents proceed under the Grava v. INS approach." Rather, the record reveals that the Immigration Judge offered the respondent the opportunity to stipulate that his testimony would be consistent with his written assertions and when respondent's counsel indicated the respondent wanted to present testimony the court proceeded with the respondent's testimony (Tr. at 16-17). Nor did the Immigration Judge improperly refer to a possible negative inference from the apparent reluctance of counsel to make available the derivative respondent as she had first-hand knowledge of facts relative to the case (Respondent's Br. at 6). The respondent also contends that the Immigration Judge "took over examination of respondent, and acted as a prosecutor;" however, he has not identified any specific instances of such conduct. Id


3

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U.S. Department of Justice Executive Office for Inunigration Review




Date:

In re:


APPEAL


CHARGE:

Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] -In the United States in violation of law (both respondents)


The respondents, natives and citizens of Indonesia, appeal the Immigration Judge's September 3, 2104, decision denying their application for asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158, and the lead respondent's application for withholding of removal under section 24l(b)(3) of the Act, 8 U.S.C. §§ 1158 and 123i(b)(3), and his request for protection under the Convention Against Torture ("CAT'), 8 C.F.R. §§ 1208.16-.18. 1 The record will be remanded.

We review an Immigration Judge's findings of fact, including findings regarding witness credibility, under a "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including issues of law, judgment or discretion, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii). See also Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012); Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015). As the respondent's asylum application was filed after May 11, 2005, it is governed by the provisions of the REAL ID Act.

The record supports the Immigration Judge's conclusion that the incidents of harm described by the respondent, which included an incident as a schoolchild when he was assaulted by native Indonesians, the looring of his family's store during the 1998 riots, the robbery of his watch by a neighbor of his sister, an assault on his parents in 2006, an attempted extortion by a person in his neighborhood, and an incident when a customer hit the respondent and made threats to harm the respondent, failed to rise to the level of persecution (I.J. at 4-6; Tr. at 46-48, 51, 54-55, 57-60, 71-72, 79-82). See Halim v. Holder, 590 F.3d 971, 975-976 (9th Cir. 2009) (finding that an applicant had failed to establish past persecution when he was stripped by students,

1 The lead respondent's wife is a derivative of his asylum application. References to "the respondent" will refer to the lead respondent.

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spat on, refused medical treatment, falsely arrested, and beaten by a mob); Wakkary v. Holder, 558 F.3d 1049, 1059-60 (9th Cir. 2009) (finding that an applicant failed to establish past persecution where he was beaten and robbed and accosted by a mob); Kohli v. Gonzales, 473 F.3d 1061, 1070 (9th Cir. 2007) (noting that persecution "is an extreme concept that does not include every sort of treatment our society regards as offensive). The respondent did not experience significant physical harm here and even considering the economic harm experienced by the respondent and his family, as he argues on appeal, we cannot find that the respondent's experiences establish persecution. See Zehatye v. Gonzales, 453 F.3d 1182, 1186 (9th Cir. 2006) (economic deprivation that did not threaten petitioner's life or freedom did not compel finding of past persecution); Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003); see also Matter of A-K-, 24 I&N Dec. 275 (BIA 2007) ( acts of persecution against family members do not establish a risk of persecution to the applicant himself, absent persecution tied to the applicant personally).

Further, the Immigration Judge did not commit legal error or clear factual error in determining that the respondent has not demonstrated that he more likely than not will suffer torture by or with the acquiescence of an official of the Indonesian government, including under the concept of concept of willful blindness, as required for protection under the CAT (I.J. at 7). See 8 C.F.R. §§ 1208.16(c) and 1208.18(a).

However, we agree with the respondent's contention on appeal that the Immigration Judge failed to provide a sufficient analysis of his claim for asylum and withholding ofremoval under a disfavored group theory (Respondent's Br. at 14-15); see Wakkary v. Holder, supra, at 1060. (finding that an asylum applicant may establish an objective risk of future persecution by showing that he will be singled out individually for persecution, i.e., under the disfavored group theory, or that there is a systematic pattern or practice of persecution against the group to which the applicant belongs); see also Lolong v. Gonzales, 400 F.3d 1215 (9th Cir. 2005); Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010). The Immigration Judge did not address the respondent's eligibility for asylum under a disfavored group theory, providing only the conclusory statement that "under any theory," whether as a member of a disfavored group or through a showing of pattern or practice, "the court cannot find that the respondent will be persecuted upon return to Indonesia" (I.J. at 6).

Based on these specific deficiencies in the Immigration Judge's decision, we find it necessary to remand the record. In rendering a new decision, the Immigration Judge should articulate the legal and factual findings related to the respondent's eligibility for asylum and withholding of removal under a disfavored group theory and a pattern or practice theory based on both the respondent's Chinese ethnicity and his Christian religion. 8 C.F.R. §§ 1003.l(d)(3)(i), (iv) (providing that the Board will not engage in de novo review of the Immigration Judge's findings of fact and will not engage in fact-finding in the course of deciding appeals); see generally Matter of S-H-, 23 I&N Dec. 462 (BIA 2002) (stating that Immigration Judges should include in their decisions clear and complete findings of fact that are supported by the record and are in compliance with controlling law). The Immigration Judge should also allow the parties to submit updated evidence related to country conditions.

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Finally we find meritless the respondent's argument that his due process rights were violated inasmuch as the Immigration Judge did not fail to act as a neutral fact-finder (Respondent's Br. at 6-7). The record does not support his contention that the Immigration Judge "attempted to prevent testimony in this case altogether" by having the respondents proceed under the Grava v. INS approach." Rather, the record reveals that the Immigration Judge offered the respondent the opportunity to stipulate that his testimony would be consistent with his written assertions and when respondent's counsel indicated the respondent wanted to present testimony the court proceeded with the respondent's testimony (Tr. at 16-17). Nor did the Immigration Judge improperly refer to a possible negative inference from the apparent reluctance of counsel to make available the derivative respondent as she had first-hand knowledge of facts relative to the case (Respondent's Br. at 6). The respondent also contends that the Immigration Judge "took over examination of respondent, and acted as a prosecutor;" however, he has not identified any specific instances of such conduct. Id


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File: - San Diego, CA Date:

In re:


APPEAL


CHARGE:

Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] -In the United States in violation of law (sustained)

JAM 1 2 2015

APPLICATION: Asylwn; withholding of removal; Convention Against Torture; voluntary departure

The respondent, a native and citizen of the Czech Republic, has appealed from the Immigration Judge's August 22, 2014, decision to deny his application for asylwn, withholding of removal, and protection under the Convention Against Torture ("CAT"), and to deny his request for voluntary departure. Sections 208(b)(l)(A), 240B(b), 24l(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ l 158(b)(l)(A), 1229c(b), 123l(b)(3)(A); 8 C.F.R. §§ 1208.16(c), 1208.18, 1240.26(c). The Department of Homeland Security ("DHS") has not responded to the appeal. The record will be remanded for further proceedings.

We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including issues oflaw,judgrnent, and discretion. 8 C.F.R. § 1003.l(d)(3)(ii).

After entering the United States on a nonimmigrant visa on , 1998, the respondent submitted two asylum applications (l.J. at 2; Exhs. 1, 11; Tr. at 3-5). The respondent affirmatively filed his first asylwn application in 1998 with the Immigration and Naturalization Service ("INS")-the predecessor of the OHS (I.J. at 2; Exh. 11). The INS denied this application on June 23, 1998 (l.J. at 2; Exh. 11). The respondent's visa expired in November 1998, and he remained in the United States in violation oflaw (l.J. at 1-2; Exh. l; Tr. at 3-5). He was placed into removal proceedings on March 29, 2013, when the OHS filed the notice to appear with the Immigration Court (I.J. at 1-2; Exh. 1). See 8 C.F.R. § 1003.14(a). During proceedings, the respondent filed a second asylum application on May 29, 2013 (l.J. at 2; Exh. 7).

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The respondent conceded his removability (l.J. at 1-2; Tr. at 3-5), and thus the only issue on appeal is the respondent's eligibility for relief from removal. 1 However, before we can fully evaluate the respondent's eligibility for relief, we must answer two questions. First, we must determine whether his 2013 asylum application is subject to the provisions of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 302 ("REAL ID Act"). Second, we must resolve whether the filing date of the respondent's first or second asylum application controls for purposes of determining the timeliness of his asylum claim. See section 208(a)(2)(B) of the Act (providing that an alien is not eligible to apply for asylum unless he or she "demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States").

With regard to the first issue, the Immigration Judge found the REAL ID Act applied to the respondent's second application (I.J. at 9 (applying REAL ID Act standards in assessing the respondent's credibility)). The Immigration Judge additionally found, with respect to the second issue, that the filing date of the respondent's 2013 asylum application controlled for purposes of section 208(a)(2)(B) of the Act (I.J. at 11-13). However, when she addressed these issues, the Immigration Judge did not have the benefit of our intervening precedent decision in Matter of M-A-F-, 26 I&N Dec. 651, 654-56 (BIA 2015) (holding that where an applicant has filed an asylum application before the May 11, 2005, and, on or after that date, submitted a subsequent application that is properly viewed as a new application, the later filing date controls for purposes of determining the applicability of the REAL ID Act, and, likewise, the later filing date of such an application controls for purposes of determining whether the I-year statutory time bar applies under section 208(a)(2)(B) of the Act). We will remand this case for the Immigration Judge to consider the effect, if any, of Matter of M-A-F-, supra, in the frrst instance. Because we are remanding this case for the above reasons, we need not address the respondent's appellate arguments regarding his eligibility for relief at this time (Respondent's Brief at 3-16).

The parties on remand should have the opportunity to update the record, and to provide any additional testimony, documentary evidence, and arguments regarding the respondents' eligibility for relief. We express no opinion with regard to the outcome on remand. Accordingly, the following order will be entered.

ORDER: The record is remanded for further proceedings and the entry of a new decision consistent with the foregoing opinion.

1 The respondent, who was represented by counsel throughout his removal proceedings and is represented on appeal, does not challenge on appeal the Immigration Judge's determination that he was competent to participate in removal proceedings, and we consider any issues in that regard to be waived (I.J. at 2-3; Exh. 7 at 177-78, 190; Exh. 8; Tr. at 8, 23-26). See Matter of L-G-H-, 26 I&N Dec. 365, 366 n.l (BIA 2014).

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File: - Philadelphia, PA

In re:


APPEAL AND MOTION

Decision of the Board oflmrnigration Appeals

Date:


APPLICATION: Asylum; withholding of removal; Convention Against Torture; Cancellation of removal; Remand

The respondent has filed a motion to remand these proceedings for further consideration of her application for asylum and withholding of removal in view of the Board's decision in Matter <?f A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), which was issued a day after the Immigration Judge's decision was rendered. She urges that the Board's intervening decision is relevant to her claim of past domestic abuse, and has attempted to clarify her claimed particular social group in light of this decision. The Department of Homeland Security has not responded to the motion nor indicated that it is opposed. 8 C.F .R. § I 003.2(g)(3). Under the circumstances, we find it appropriate to grant the motion to remand, and need not reach the other issues raised on appeal. On remand, new evidence relevant to any form of relief from removal may be considered.

ORDER: The respondent's motion to remand is granted, and the record is remanded to the Immigration Court for further proceedings consistent with the foregoing and for the entry of a new decision.

FOR THE BOARD

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File: - Eloy, AZ

In re:


APPEAL


Date:


CHARGE:

Notice: Sec. 212(a)(6)(C)(ii), I&N Act [8 U.S.C. § l 182(a)(6)(C)(ii)J -False claim of United States Citizenship (sustained)

Sec. 212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. § l 182(a)(7)(A)(i)(I)] -Immigrant - no valid immigrant visa or entry document (sustained)

APPLICATION: Withholding ofremoval; Convention Against Torture

The respondent, a native and citizen of Mexico, appeals from the decision of the Immigration Judge, dated August 21, 2014, denying her applications for withholding of removal pursuant to section 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 123l(b)(3) and protection under the Convention Against Torture. See 8 C.F.R. §§ 1208.16-.18. The record will be remanded.

We review the findings of fact made by the Immigration Judge, including the determination of credibility, for clear error. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including questions of judgment, discretion, and law, de novo. 8 C.F.R. § 1003.l(d)(3)(ii). The respondent's application for relief, which was filed after May 11, 2005, is governed by the Amendments made to the Act by the REAL ID Act. See Matter of S-B-, 24 I&N Dec. 42 (BIA 2006).

We conclude that remand is warranted. First, we conclude that additional consideration of the respondent's eligibility to apply for asylum is warranted. Before the Immigration Judge, the respondent conceded, through counsel, that she is ineligible for asylum because she made a false claim to United States citizenship (l.J. at 2; Tr. at 212). This issue has not been raised on appeal by the parties. However, as a false claim to United States citizenship is not a per se bar to asylmn, we conclude that the parties should further clarify the respondent's eligibility to apply for asylum on remand. See generally Santiago-Rodriguez v. Holder, 657 F.3d 820 (9th Cir. 2011) (discussing three types of "egregious circumstances" that, if present, justify relieving an alien of his attorney's admissions: (I) an admission that would "produce[] an unjust result;" (2) if the alien subsequently offers evidence proving that "the factual admissions and concession of [removability] were untrue or incorrect;" (3) if the admission "were the result of unreasonable professional judgment").

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Second, remand is required for the Immigration Judge to provide additional analysis of the respondent's credibility. The Immigration Judge's analysis of the respondent's credibility is insufficient for the Board to provide meaningful appellate review. In finding the respondent not credible, the Immigration Judge indicated that "[b ]ased on the inconsistencies in the accounts (or omissions) of past harm, it is unclear what harm the respondent actually suffered, if any" (l.J. at I 0). The Immigration Judge did not identify the specific inconsistencies or omissions to which the order referred. Additionally, the Immigration Judge also noted that reliance on a comparison of an applicant's testimony to asylum interview notes in assessing credibility is not always appropriate and that the "Court will give the discrepancies the appropriate weight" (I.J. at 10). But with no additional analysis or explanation the Immigration Judge concluded that "the respondent has not met her burden of proof to demonstrate that her claim and testimony is 'credible"' (l.J. at 10).

We conclude that the Immigration Judge's analysis of the respondent's credibility is insufficient and we will remand for additional consideration of this issue. Under the REAL ID Act, an Immigration Judge may base a credibility determination on any inaccuracies or falsehoods in the applicant's statements without regard to whether they go to the heart of the applicant's claim. See section 208(b)(l)(B)(iii) of the Act. The Immigration Judge may consider any relevant factor that when evaluated in light of the totality of the circumstances can reasonably be said to have a bearing on the witness's veracity. Ren v. Holder, 648 F.3d 1079, 1084 (9th Cir. 2011) (citing Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010)). In the remanded proceedings the Immigration Judge should (I) explicitly consider and evaluate the reliability of the credible fear interview notes. See Singh v. Gonzales, 403 F .3d I 081, I 089-90 (9th Cir. 2005); (2) identify any inconsistencies or omissions in the respondent's testimony; and (3) consider the respondent's explanations for any inconsistencies or omissions in the record in assessing the respondent's credibility based on tl1e totality of the circumstances. See Rizk v. Holder, 629 F.3d 1083, 1087-89 (9th Cir. 2011) (stating that an Immigration Judge "cannot base an adverse credibility detennination on a contradiction that the alien could reconcile if given a chance to do so"); see also Don v. Gonzales, 476 F.3d 738, 741 (9th Cir. 2007) (stating that the Immigration Judge "must provide a [respondent] with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum") (citing Ordonez v. INS, 345 F.3d 777, 786 (9th Cir. 2003)).

Third, remand is required for the Immigration Judge to provide additional analysis of whether the respondent established a nexus between the harm she experienced and fears and a basis protected under the Act. See section 241 (b )(3 )(A) of the Act; Parussimova v. 1\Iukasey, 555 F.3d 734, 740-41 (9th Cir. 2009) (stating that the Real ID Act requires that a protected ground represent "one central reason" for an asylum applicant's persecution); Afatter of C-T-L-, 25 l&N Dec. 341 (BIA 2010) (holding that absent a showing that a protected ground would be a "central reason" for the claimed past or future harm, the respondent cannot establish eligibility for either asylw11 or withholding of removal). The respondent contends that she will be harmed on account of her membership in a particular social group she defines as her father's biological family. Jn assessing whether the respondent established membership in a particular social group, the Immigration Judge did not specifically articulate or analyze the respondent's claimed social group (J.J. at 10-12). We conclude the generalized analysis provided by the Immigration Judge is insufficient. In the remanded proceedings the Immigration Judge should specifically consider

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whether the respondent established she is a member of a particular social group consisting of her father's biological family. Thomas v. Gomales, 409 F.3d 1177 (9th Cir. 2005), cert. granted, judgment vacated 011 other grounds, 547 U.S. 183, 126 S. Ct. 1613, 164 L. Ed. 2d 358 (2006); Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014).

Finally, the Immigration Judge's analysis of whether the Mexican officials are willing and able to protect the respondent from harm perpetrated by private actors is insufficient (l.J. at 12). The Immigration Judge's finding in this regard is conclusory and does not meaningfully address the respondent's contention that Mexican officials would not intercede on her behalf due to pervasive corruption. The Immigration Judge should specifically consider the evidence in the record relatirtg to this issue in the remanded proceedings. Accordingly, the following order v.'ill be entered. 1

ORDER: The record is remanded for further proceedings cor1sistent with the foregoing opinion and for the entry of a new decision.

1 In light of our determination the remand is appropriate, we decline, at this point, to consider the respondent's arguments relating to eligibility for protection under the Convention Against Torture.

3

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· U.S. Department of Justice Executive Office for Immigration Review



In re:


APPEAL


Date: JAM 1 3 2015


CHARGE:

Notice: Sec. 212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. § I 182(a)(7)(A)(i)(I)] -Immigrant - no valid immigrant visa or entry document (conceded)


The respondent, a native and citizen of Guatemala, has appealed from the Immigration Judge's August 29, 2014, decision to deny his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Sections 208(b)(l)(A) and 24l(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(b)(l)(A), 123l(b)(3l(A); 8 C.F.R. §§ 1208. I 6(c), 1208.18. The record will be remanded for further proceedings.

We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including issues of Jaw, judgment, and discretion. 8 C.F.R. § 1003.l(d)(3)(ii). Because the respondent filed his application for relief from removal after May 11, 2005, it is subject to the relevant provisions of the REAL ID Act of 2005. Matter of A-R-C-G-, 26 I&N Dec. 388, 389 n.8 (BIA 2014).

The respondent conceded removability (I.J. at 2; Tr. at 8-9), and thus the only issue on appeal is whether the respondent is eligible for relief from removal. In denying the respondent's application for asylum in this case, the Immigration Judge found that the respondent had not shown that he experienced past persecution on account of a particular social group in Guatemala (l.J. at 5). 1 However, the Immigration Judge made no findings of fact as to whether the respondent had established a well-founded fear of future persecution in Guatemala (see 1.1. at 5). See Matter o/Z-Z-0-, 26 I&N Dec. 586, 590 (BIA 2015) (holding "that an Immigration Judge's predictive findings of what may or may not occur in the future are findings of fact, which are subject to a clearly erroneous standard of review"). Because the Immigration Judge's decision is incomplete in this regard, and given the Board's limited fact-finding ability on appeal, see 8 C.F.R. § I 003. I (d)(3)(i), we will remand the record for the Immigration Judge to make the

1 The Immigration Judge also did not find whether the hann the respondent experienced rose to the level of past persecution (see l.J. at 5).

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. appropriate predictive findings of fact and determine whether the respondent has established a well-founded fear of future persecution in the first instance. See Jvfatter ofZ-Z-0-, supra.

We additionally note that the Immigration Judge did not permit the respondent to present evidence regarding an uncle and cousin who were allegedly killed in Guatemala, finding such evidence to be irrelevant to his claim (see Tr. at 20-21; see also Exh. 2 at Tab B, 5 (respondent's declaration, stating that some of the respondent's relatives have been killed by gang members)). On remand, the Immigration Judge should allow the respondent to submit evidence regarding any harm gang members have inflicted against members of his family. In so doing, the Immigration Judge should consider the effect, if any, of the intervening precedent decision in Rios v. Lynch, 807 F.3d 1123, 1126 (9th Cir. 2015) (remanding because the Board failed to consider evidence that gang members killed the alien's father and cousin, and threatened the alien's sister, and the Board did not assess whether the alien would be persecuted on account of his membership in "a social group made up of his family").

Accordingly, the parties on remand should have the opportunity to update the record, and to provide any additional testimonl, documentary evidence, and arguments regarding the respondents' eligibility for relief. We express no opinion with regard to the outcome on remand. The following order will be entered.

ORDER: The record is remanded for further proceedings and the entry of a new decision consistent with the foregoing opinion.

FOR THE BOARD

2 Because we are remanding this case for further proceedings, in which additional evidence may be submitted, we need not reach the respondent's appellate contentions regarding his eligibility for relief, or the Immigration Judge's determinations regarding the submission of certain evidence, at this time (Respondent's Brief at 2-9).

2

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Decision of the Board ofhnmigration Appeals


File: - Los Angeles, CA Date: JAN I 9

In re:


APPEAL AND MOTION


APPLICATION: Remand

ORDER:

The respondent is a native and citizen of India. The Immigration Judge found that the

respondent was removable under section 237(a)(l)(A), and that he was not eligible for relief

from removal under section 212(h) as such a waiver may not be granted on a stand alone basis.

See Matter of Rivas, 26 I&N Dec. 130 (BIA 2013). The respondent appealed and during the

pendency of this appeal, the respondent married a United States citizen and filed a motion to

remand. He has attached a pending 1-130 visa petition, a waiver application, an I-485 adjustment

application, and evidence that his wife is currently pregnant with his child. Considering all the

circumstances presented, as well as the fact that the motion is unopposed, the motion to remand

is granted.

FURTHER ORDER: The record is remanded for further proceedings in accordance with this decision.

FOR THE BOARD

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U.S . . Department of Justice Executive Office for lnumgration Review


File: - Portland, OR

In re:

lN REMOVAL PROCEEDlNGS

APPEAL AND MOTION

Decision of the Board oflmmigrat1on Appeals

Date: JAN 1 1 20~~


ON BEHALF OF OHS: Sarah C. Lara Assistant Chief Counsel


An appeal from the Immigration Judge's decision in this case is currently pending before the Board of Immigration Appeals ("Board.'). The Department of Homeland Security ("OHS") has now filed a motion to remand these proceedings. The respondent, through counsel, has filed a response indicating that he does not oppose a remand. The motion will be granted. On remand, the Immigration Judge shall provide the parties the opportunity to submit further testimony and documentary evidence relevant to the respondent's application or any other relief available to him. 1 Because the motion to remand will be granted, we do not reach the merits of the appeal at this time. Accordingly, the motion is granted.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with this opinion.

1 We decline to limit the scope of the remand as requested by the OHS (Motion at I).

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. . ,





Date: DEC 3 1 2015 In re: ak.a. a.k.a.


APPEAL


APPLICATION: Asylum; withholding of removal; Convention Against Torture; cancellation of removal; voluntary departure

The respondent is a native and citizen of Guatemala. He appeals from the Immigration Judge's September 4, 2014, decision terminating removal proceedings and he moves for the record to be remanded for further proceedings based on new evidence. The Department of Homeland Security (DHS) has not submitted a reply brief on appeal. The record will be remanded.

We review the findings of fact made by the Immigration Judge under a "clearly erroneous" standard. See 8 C.F.R. §1003.l(d)(3)(i). We review all other issues, including questions of law and discretion, under a de novo standard. See 8 C.F.R. §1003.l(d)(3)(ii).

On appeal, the respondent contends that the Immigration Judge improperly terminated these proceedings under the reinstatement provisions of section 241(a)(S), 8 U.S.C. § 123 l(a)(S). This case arises in the Ninth Circuit and in this regard, the respondent states that under the circuit's holding in lxcot v. Holder, 646 F.3d 1202 (9th Cir. 2011), the post-Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) reinstatement provisions are impermissibly retroactive when applied to an immigrant who applied for relief prior to IIRIRA' s effective date of April 1, 1997 (Br. at 2-3). As the result of filing a Freedom of Information Act (FOIA) request, the respondent has new evidence that was unavailable to him at the time of his hearing. This new evidence specifically verifies that in 1994, or before IIRIRA's effective date, he filed for asylum. Hence, the respondent asserts that the facts of his case fall within the holding in Ixcvt v. Holder, supra, and a remand is appropriate for him to litigate his right to relief from removal.

We agree with the respondent's position. Moreover, the government has not responded to the appeal and the motion to remand. See 8 C.F .R. § 1003 .2(g)(3) (a motion is deemed unopposed when the opposing party fails to file a timely response 13 days after service of the motion).

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ORDER: The decision of the Immigration Judge is vacated.

FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with this order.

2

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U.S. Department of Justice Executive Of'IU:e for Immigration Review

' Falls Church, Virginia 22041

File: - Kansas City, MO

In re:


ON APPEAL

Decision oflhe Board of Immigration Appeals

Date: JAN - 7 2016


ON BEHALF OF OHS: Jennifer Mays Assistant Chief Counsel


The respondent has appealed the Immigration Judge's decision dated September 16, 2014, denying his motion to reopen. The Immigration Judge had previously ordered the respondent removed in absentia for his failure to appear at the hearing on June 19, 2014. We review an Immigration Judge's findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. §§ 1003.l(dX3Xi), (ii). We have considered the totality of the circumstances presented in this case, and find that the evidence is sufficient to establish that the respondent did not receive proper notice of the hearing below, and that reopening and rescission of the in absentia removal order is therefore warranted. Accordingly, the respondent's appeal will be sustained, the in absentia order will be rescinded, the proceedings will be reopened, and the record will be remanded to allow the respondent another opportunity to appear for his hearing.


FURTHER ORDER: These proceedings are reopened, the in absentia order of removal is vacated, and the record is remanded to the Immigration Court for further proceedings.

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u.s: Department of Justice Ewcutive Office for Immigration Review




In re:


ON APPEAL

/ Date:



JAN - 4 20'6

The respondent has appealed the Immigration Judge's decision dated September 8, 2014, denying his motion to reopen. The Immigration Judge had previously ordered the respondent removed in absentia for his failure to appear at the hearing on April 10, 2014. We review an Immigration Judge's findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de nova. 8 C.F.R. §§ 1003.I(d)(3)(i), (ii). We have considered the totality of the circumstances presented in this case, and find that the evidence is sufficient to establish that the respondent did not receive proper notice of the hearing below, and that reopening and rescission of the in absentia removal order is therefore warranted. See Jvlatter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). Accordingly, the respondent's appeal will be sustained, the in absentia order will be rescinded, the proceedings will be reopened, and the record will be remanded to allow the respondent another opportunity to appear for his hearing.


FURTHER ORDER: These proceedings are reopened, the in absentia order of removal is vacated, and the record is remanded to the Immigration Court for further proceedings.

~ {~ l'\_,I .

FOR ~HE BO ------=z:>

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U.S. Depllrtment of Justice Decision of the Board oflmmigration Appeals · Executive Office for Immigration Review


File: - Los Angeles, CA Date: JAN - 4 20~5

In re:


APPEAL


APPLICATION: Cancellation; asylum; withholding; Convention Against Torture; voluntary departure

The respondent, a native and citizen of El Salvador, has appealed from the Immigration Judge's decision dated September 22, 2014, denying his applications for relief. The record will be remanded for further proceedings with respect to the respondent's application for cancellation ofremoval.

The Immigration Judge denied the respondent's application for cancellation of removal because he was incarcerated for an aggregate period of more than 180 days in 2005 (l.J at 4). See sections 10l(f)(7) and 240A(b)(l)(B) of the Act, 8 U.S.C. §§ 1101(f)(7) and 1229b(b)(l)(B). Pursuant to section 10l(f)(7) of the Act, only confinement that occurs during the period during which good moral character must be demonstrated is counted toward the good moral character bar. We held in our precedent decision in Matter of Ortega-Cabrera, 23 l&N Dec. 793 (BIA 2005), that the relevant 10 year period for the moral character determination is calculated backwards from the date on which the cancellation of removal application is finally resolved by the Immigration Judge or this Board. Therefore, it appears that the respondent has again become eligible for that relief during the pendency of the appeal. The record will be returned to the Immigration Judge to determine ifthe respondent is otherwise eligible for relief.

In light of the foregoing, we need not address the respondent's appeal from the denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture at this time.


ORDER: The record is remanded to the Immigration Court with respect to the respondent's application for cancellation of removal for further proceedings consistent with the foregoing opinion.

FORTHEBOARD z:s=

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In re:


APPEAL



Date: DEC 3 1 2015

APPLICATION: Asylum; withholding; Convention Against Torture; cancellation ofremoval

Tue respondent, a native and citizen of China, has appealed the Immigration Judge's decision dated October 9, 2014, pretermitting his applications for relief because he failed to undergo required biometric security checks. Tue record will be remanded for further proceedings.

The Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony, under a clearly erroneous standard. See 8 C.F.R. § 1003.l(d)(3)(i). The Board reviews questions of law, discretion, and judgment, and all other issues raised in an Immigration Judge's decision de novo. See 8 C.F.R. § 1003.l(d)(3)(ii).

Tue Immigration Judge deemed the respondent's applications for relief abandoned for failure to complete required biometrics security checks.1 Tue applicable regulations provide specific guidelines for an Immigration Judge and the Department of Homeland Security (DHS) to follow when informing an alien about the necessity of completing the biometrics requirement in connection with applications for relief, and those procedures include providing the alien with a warning that the failure to comply shall constitute abandonment of the applications for relief. See 8 C.F.R. § 1003.47(c) and (d). The DHS is tasked with notif)':ing the respondent of the need to provide biometrics and other biographical information, and providing instructions for completing those procedures. The regulation also mandates that upon receipt of the biometrics notice and instructions, the Immigration Judge shall specify on the record the consequences of failing to comply with the biometrics requirement. In this case, the hearing transcript indicates that notice was served on the respondent by the DHS (Tr. at 6). However, the transcript also shows that counsel waived the presence of a Mandarin interpreter for the respondent, and no copy of the notice is found in the record of proceedings to show whether the notice was printed in the Mandarin language. The transcript does not reflect that the Immigration Judge instructed counsel to provide any warning to the respondent that his applications for relief would be deemed abandoned if he did not comply with the biometrics requirement. Counsel subsequently filed a motion to withdraw from representation a few days before the hearing, with no basis for the request stated. The motion was denied but counsel did not appear, and the respondent was

1 Tue respondent had previously filed an asylum application and supporting evidence with the Immigration Court.

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required to proceed without representation. When queried about his failure to complete the biometrics requirement, the respondent informed the Immigration Judge that he had previously had his fingerprints taken and his was unaware that he needed to repeat the procedure in connection with the filing of applications for relief.

In the Board's recently published decision in Matter of D-M-C-P-, 26 l&N Dec. 644 (BIA 2015), we emphasized the necessity of following the procedures outlined in 8 C.F.R. § 1003.47 to ensure that an asylum applicant receives proper notice of the biometrics requirements. Inasmuch as the transcript does not reflect that the Immigration Judge followed those procedures in their entirety and it is not clear what, if anything, was communicated to the respondent concerning his obligations and the consequences of non-compliance, we do not find that it was appropriate for the Immigration Judge to deem the respondent's opportunity to file for relief waived. We will return the record to the Immigration Court to give the required warnings and instructions on the record, and to provide the respondent with another opportunity to complete the required security checks and resubmit his applications for relief. See Cui v. Mukasey, 538 F.3d 1289, 1293-95 (9th Cir. 2008) (finding that the denial of a continuance for alien to resubmit required fingerprints was an abuse of discretion where alien had no notice of the requirement and consequences of the failure to comply).


ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion.

FO

2

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, ' U.S. Department of Justice Executive Office for Immigration Review


File: -Boston, MA

In re:


APPEAL



Date:

JAN 2 7 2016


The respondent, a native and citizen of the People's Republic of China, appeals from the Immigration Judge's decision dated September 24, 2014, which denied her application for asylum and withholding of removal under sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 123l(b)(3), and protection under the Convention Against Torture, 8 C.F.R. § 1208.16(c), but granted voluntary departure under section 240B of the Act, 8 U.S.C. § 1229c. The Department of Homeland Security (DHS) has not replied to the respondent's brief on appeal. The record will be remanded.

The Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony and the likelihood of future events, under the "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). See Matter ofZ-Z-0-, 26 l&N Dec. 586 (BIA 2015). The Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R. §1003.l(d)(3)(ii). Because the asylum application was filed after May 11, 2005, it is subject to the provisions of the REAL ID Act of 2005. Matter of S-B-, 24 I&N Dec. 42, 45 (BIA 2006).

The Immigration Judge found that the respondent testified credibly but did not establish a well-founded fear of future persecution in China based on her practice of religion undertaken in the United States (l.J. at 4). However, as the respondent argues on appeal, it is not clear that the Immigration Judge's general reference, as an example, to conditions to province as stated in the International Religious Freedom Report (Report) accurately reflects all of the findings in the Report for that province (Exh. 4, Tab M). Respondent's Brief at 4-5. In addition, the record shows that the respondent is from the province, not the province (Exh. 2 at 1, 4; Tr. at 18, 33). To the extent the decisfon may suggest that the Immigration Judge was considering whether the respondent could relocate within China, we note that internal relocation is presumed to be not reasonable when the persecutor is the government, unless the DHS meets its burden to rebut that presumption. 8 C.F.R. §§ 1208.13(2)(ii), (3)(i), (ii).

Under the circumstances, we conclude that a remand is in order for further consideration of the application with additional factfinding as needed. See 8 C.F.R. § 1003.l(d)(3)(iv). On remand, the parties should be permitted to update the record. Accordingly, the following order will be entered.

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I


2

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U.S. Department of Justice Executive Office for lmn11grat1on Review


File: - San Diego, CA

In re:


APPEAL

Dec1s1on of the Board of lmm1grat1on Appeals

Date: J t,~t 1 :., "L~ 1.·5 ,.., -


ON BEHALF OF OHS: Ameha C. Anderson Assistant Chief Counsel

APPLICATION: Voluntary departure

The respondent, a native and citizen of Mexico, appeals from the October 17, 2014, decision of the Immigration Judge, granting the respondent voluntary departure under section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. § I 229c(b ). The record will be remanded.

We review the findings of fact, including any determination of credibility, made by the Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3){i). We review all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion, under a de novo standard. 8 C.F.R. § 1003.l{d)(3)(ii).

Upon our review of the record. we find remand warranted to allow the respondent an opportunity to pursue any relief from removal for which he may be eligible, mcluding asylum and withholding of removal under sections 208 24l(bJ(3) of the Act, 8 U.S.C. §§ 1208 and 1231 (b)(3), and protection under the Convention Against Torture {CAT), 8 C.F.R. § 1208.16(c). Through prior counsel, the respondent indicated at a hearing on April 11, 2014, that he had no fear of returning to Mexico (Tr. at 8). On appeal, the respondent has submitted a motion to remand which includes a 1.VTitten statement asserting that he was never asked if he feared returning to Mexico by prior counsel, and further that he did not know the attorneys who represented him at the April 11. 2014, or October 17, 2014, hearings. 1 We note that the record of those hearings does not demonstrate that the Immigration Judge asked the respondent any questions directly, including if he had any fear of returning to Mexico.

The respondent has not fully complied with the procedural requirements set forth m Matter of Lozada. 19 I&N Dec. 63 7 (BIA 1988 ). to establish his ineffective assistance of prior

1 The record contains two Notices of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28), one executed by and the other by , both from the law firm Attorney

represented the respondent at the April 11, 2014. hearing and Attorney represented the respondent at the October l 7, 2014, hearing.

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counsel claim in support of his motion to remand. 2 However. based on the totality of the circumstances presented in this case. including the respondent's written statement that he wa~ not questioned regarding whether he feared returning to Mexico by prior counsel, we will remand the record to the Immigration Judge to provide the respondent with an opportunit} to apply for rehef from removal, including asylum and withholding of removal. See e g. Morales Apo/mar v Mukasey. 514 F.3d 893 (9th Cir. 2007) (noting that the Ninth Circuit has been flexible in its apphcat1on of the Lozada requirements); Celzs-Castellano v Ashcroft, 298 F 3d 888, 892 (9th Cir. 2002) (the Board must accept as true the facts stated in an alien's affidavit in ruling upon his motion to reopen unless it finds those facts to be inherently unbelievable).

While we conclude that remanded proceedings are warranted. we express no opinion regarding the ultimate outcome of these proceedings at the present time.


ORDER: The record is remanded to the Immigration Court for further proceedings consistent with this order and the entry of a new decision.

2 In the respondent's motion for remand. present counsel states. without further explanation, that counsel .. sees no[] basis to file a complaint against the prior attorney"' (Resp Motion to Remand, at 4 ). Counsel further states that he is serving the motion to remand on prior counsel ·'to allow the opportunity of filing a response" <Resp. Motion to Remand. at 4)

2

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U.S. Department of Jmtice Executive Office for Immigration Review


' Falls Church, Virginia 22041

File: - Boise, Idaho Date:

In re:


APPEAL


ON BEHALF OF OHS: Shana L. Martin Assistant Chief Counsel

JAN 1 4 2015

APPLICATION: Protection under the Convention Against Torture; voluntary departure

The respondent, a native and citizen of Mexico, has filed a timely appeal of the Immigration Judge's October 22, 2014 decision, which denied his application for withholding or deferral of removal under the Convention Against Torture ("CAT''), pursuant to 8 C.F.R. § l208.16(c)-. I8, and his request for post-conclusion voluntary departure. 1 The Department of Homeland Security ("DHS") has filed a brief in opposition. The record will be remanded.

The factual findings of the Immigration Judge are reviewed to determine whether they are "clearly erroneous." 8 C.F.R. § 1003.l(d)(J)(i). All other issues in appeals from decisions of Immigration Judges, including legal and discretionary determinations and applications of law to fact, are reviewed de novo. 8 C.F.R. § 1003. l(d)(J)(ii).

The Immigration Judge denied the respondent's application for withholding or deferral of removal under the Convention Against Torture, 8 C.F.R. § 1208.16-.18, finding that he failed to meet his burden of proof (I.J. at 9-10). See 8 C.F.R. § 1208.16-.18. However, the Immigration Judge's only statement of the facts in this case consists of a cursory mention, within his credibility determination, that the respondent was held for ransom by the smugglers who brought him to the border of the United States (I.J. at 6). The Immigration Judge did not list and address the specific facts, for example how the respondent was threatened and what was done to the other persons travelling with the respondent (Resp. Br. at 5; Tr. at 27-48). Nor does the record reveal any specific questioning of the respondent as to what might happen to him upon return to Mexico, and each step of the chain of events how he claims he is more likely than not to be tortured in Mexico in the future (Tr. at 29-35). See Matter of J-F-F-, 23 I&N Dec. 912 (AG. 2006) (eligibility for relief under the Convention Against Torture cannot be established by stringing together a series of suppositions).

1 The respondent has not contested the denial of asylum under section 208 of the Act, 8 U.S.C. § 1158, and the denial of withholding of removal under section 241(b)(3) of the Act, 8U.S.C. § 123I(b)(3), therefore these issues are deemed waived.

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The Immigration Judge concluded that the respondent failed to establish that he would more likely than not face torture by or v;ith the acquiescence (including willful blindness) of an official of the government ofMexico, or someone acting in an official capacity (I.J. at 9-10). Id.; see also Ochoa v. Gonzales, 406 F.3d 1166, 1172-73 (9th Cir. 2005) (for relief under CAT a petitioner need only prove the government is aware of a third party's torturous activity and does nothing to intervene or prevent it). He noted that the smugglers who held the respondent against his will in 2003 were not government actors (I.J. at l 0).

However, the Inunigration Judge did not adequately address the issue of potential acquiescence by persons acting in an official capacity, especially police (I.J. at 1 O; Resp. Br. at 6-7). Most notably, the Immigration Judge's decision appears to accept the respondent's testimony that police are sometimes complicit with kidnappers in Mexico, but then makes a cursory conclusion that the respondent has not shown "acquiescence" by any public official in Mexico (I.J. at 9-10; Resp. Br. at 5-7; Tr. at 35). The United States Court of Appeals for the Ninth Circuit has held that "acquiescence" requires only that officials "turn a blind eye" to torture. Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th Cir. 2003). An applicant for CAT relief is not required to report the events to authorities (I.J. at 6, 9-10; Tr. at 27-28, 35, 37-38, 41-42; Resp. Br. at 6-7; Exh. 6). Id.; see also Ornelas-Chavez v. Gonzales, 458 F.3d 1052, at 1060 (9th Cir. 2006). It is enough that public officials could have inferred the alleged torture was taking place, remained willfully blind to it, or simply stood by because of their inability or unwillingness to oppose it. Id., at 1195. Furthermore, the Immigration Judge has not explicitly considered the specific contents of the Department of State country report and other evidence contained in the record regarding conditions in Mexico (I.J. at 6-7, 9-10; Exh. 6, in particular p. 30-38, 124-129). See Aguliar-Ramos v. Holder, 594 F.3d 701 (9th Cir. 2009)(Immigration Judge must consider country reports). Upon remand, the Immigration Judge should fully explain his analysis, including applying the applicable legal precedents to the specific facts in the respondent's case.

The Immigration Judge properly denied voluntary departure where the respondent did not meet the qualifying requirements (I.J. at 10). 8 C.F.R § 1240.26(c)(l). In particular, the respondent testified that he did not have the funds necessary to return to Mexico voluntarily, and stated that he would need 3 months to accumulate the requisite funds (Tr. at 35-36). See 8 C.F.R § 1240.26(cXI)(iv) (alien must establish by clear and convincing evidence that he has the means to depart). We are not persuaded by the respondent's arguments on appeal, including his unsupported claim that he has now saved up sufficient funds to depart (Resp. Br. at 8-9). However, upon remand, due to the passage of time, a new determination may be made whether the respondent meets the requirements for voluntary departure, including lack of any disqualifying convictions and availability of the necessary funds to depart.

2

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ORDER: The record is remanded to the Immigration Judge for the entry of a new decision consistent with the foregoing opinion.

3

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I U.S. Depllrtment e.f Justice Executive (lffi;:e for Immigration Review


File: - San Diego, CA

In re:


Date:

JAN - 4 2016

IN ASYLUM ONLY AND/OR WITHHOLDING PROCEEDINGS

CERTIFICATION

ON BEHALF OF APPLICANT: Pro se

ON BEHALF OF DHS: Kerri Calcador Senior Attorney

APPLICATION: Termination of proceedings

Tiris case was last before the Board on July 2, 2014, when we remanded for further proceedings. On remand, the Immigration Judge terminated proceedings and certified the record back to the Board. The Department of Homeland Security ("DHS") has filed a brief. The record will again be remanded for further proceedings.

In a decision dated February 4, 2013, the Immigration Judge found the prose applicant to be mentally incompetent to proceed. See Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011). The Innnigration Judge described at length the facts and reasoning underlying her determination (l.J. at 2-26). We found no clear error in the facts found by the Immigration Judge that led her to conclude that the applicant lacks competency (BIA at 2). See Matter of J-S-S-, 26 I&N Dec. 679 (BIA 2015) (recognizing competency as a finding of fact subject to clear error review). We also noted in our decision that the Immigration Judge applied a number of safeguards to protect the applicant's right to a fair hearing (l.J. at 25), although she terminated proceedings based on her conclusion that the safeguards were not adequate.

We concluded that a remand was warranted to provide DHS with another opportunity to procure the psychiatric records from the applicant's hospitalization in 2012 and to present any additional records in its possession to the court. We also directed the Immigration Judge to consider other safeguards, such as the identification and appearance of family members who could assist the applicant, administrative closure, and for the DHS to have an opportunity to serve the charging document under our intervening precedent decision Matter of E-S-1-, 26 l&N Dec. 136 (BIA 2013.

First, the Immigration Judge correctly observed that Matter of E-S-1-. supra, addresses the service of a Notice to Appear (NTA) in a removal proceeding, whereas the applicant is in asylum only proceedings and was served with a Notice of Referral to Immigration Judge (Form 1-863). We do not see a basis under the regulations to limit the service requirements of Matter of E-S-1-to removal proceedings. Specifically, 8 C.F.R. 103.8, which is the regulatory provision analyzed in Afatter of E-S-1-, provides that the notice requirements apply to "authorized means of service by the Service on parties and on attorneys and other interested persons of notice, decisions and

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other papers (except warrants and subpoenas) in administrative proceedings ... " In addition, 8 C.F.R. 103.S(c)(l) discusses service "in any proceeding."

Second, the Immigration Judge requested guidance on whether Matter of E-S-1- can be applied "retroactively." Service of a charging document pursuant to Mauer of E-S-1-, could not have been made given that E-S-1- had not issued when the first Immigration Judge rendered her decision in this case, and the DHS did not then view the applicant as incompetent. Further, we stated in Matter of E-S-l- that indicia of incompetency may not be recognized at the time of serving the charging document, and, if so, the Immigration Judge may determine whether service under Matter of E-S-1- is a meaningful safeguard after finding an individual incompetent. The DHS now requests the opportunity for a continuance to serve the Form I-863 pursuant to Matter of E-S-1-, and we see no impediment to allowing it to attempt to identify individuals with whom the applicant "resides" or, "a near relative, guardian, committee or friend." Id. at 141. To be clear, whether the DHS can identify such an individual is for discussion in proceedings before the Innnigration Judge. Furthermore, the DHS may also advocate for the safeguard of administrative closure to seek a person with knowledge of the applicant's past in England. See, e.g., Matter of M-AM-, supra at 483 (identifying administrative closure as appropriate in some cases, "while other options are explored ... ").

Third, the Immigration Judge expressed his concern about our conclusion that the applicant had demonstrated a genuine subjective belief in her account of the past events in her life that form the basis of her claim, and which are well set forth in proceedings before the prior Immigration Judge. Since we last remanded this case, we issued A1atter of J-R-R-A-, 26 I&N Dec. 609 (BIA 2015), which describes the safeguard of accepting an individual's fear of harm as subjectively genuine based on the individual's perception of events, where the objective plausibility or reliability of the testimony is lacking due to mental health symptoms. In our view, this safeguard is relevant here given the applicant's ability to testify and explain the reasons for her fear. Whether these reasons are plausible, even if subjectively genuine, or can be supported by any evidence other than the applicant's testimony, are questions to be addressed at the hearing. In short, the applicant has been able to testify at length about the harm she believes she experienced in the past and fears in the future. The question then becomes whether she has met her burden of proof. 1

Fourth, ifthe Immigration Judge is not able to decide the claim after following this guidance, he should re-evaluate administrative closure as an option, irrespective of the parties' positions.

ORDER: The appeal of the Immigration Judge's order terminating proceedings on the grounds of mental incompetency is sustained.

1 We recognize that the applicant may not be in a position to obtain and provide country conditions evidence, e.g., reports from the United States Department of State, that frequently form part of the evidentiary record. See generally, Chebchoub v. INS, 257 F.3d 1038, 1043-44 (9th Cir. 2001), superseded by statute on other grounds as stated in Shrestha v. Holder, 590 F.3d 1034, 1046 (9th Cir. 2010). Nonetheless, the DHS is obligated to present evidence to develop the record regarding the applicant's eligibility for protection, including current country reports. Matter ofS-M-J-, 21 I&N Dec. 722, 726-727 (BIA 1997).

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FURTHER ORDER: The Immigration Judge's decision is vacated, and the record is remanded for further proceedings consistent with this opinion.

FORTHE

3

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File: - Tacoma, WA


Date: JAM 2 0 2~~5

In re:


APPEAL


CHARGE:



The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's decision dated January 30, 2015, denying asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158; withholding of removal under section 24l(b)(3) of the Act, 8 U.S.C. § 123l(b)(3); and protection under the Convention Against Torture. The Department of Homeland Security (DHS) has not filed a response to the appeal. The appeal will be dismissed in part and the record will be remanded.

The respondent fears persecution in Mexico on account of his membership in a particular social group comprised either of "Mexican nationals lacking familial protection, forced to smuggle drugs, and marked for death by Mexican criminal organizations," or of "Mexican nationals who are indigent and suffer from mental illness" (I.J. at 17-24, 35-36, 44; Resp't Br. at 2-10). With respect to the first claim, he asserts that he was kidnapped, threatened, and forced to smuggle drugs by the Zeta cartel in 2008, that he was kidnapped, threatened, burned, and forced to smuggle drugs by a group affiliated with the Sinaloa cartel in 2009, and that he will be a marked man upon his return. With respect to the second claim, he asserts that there is inadequate mental health care and there are inhumane conditions at state-sponsored mental health institutions in Mexico. The Immigration Jndge found the respondent and his expert witness were credible (l.J. at 27-28), and that the respondent's asylum application's untimely filing was excused by his mental illness (l.J. at 32-33), 1 but held that the respondent did not carry his burden to show that he is eligible for asylum, withholding of removal, or protection under the Convention Against Torture (l.J. at 33-62).

1 The Immigration Judge found the respondent was not competent based on colloquies with the respondent and evidence presented by the parties, and she assigned a qualified representative as a safeguard in the proceedings (l.J. at 1-2, 18, 23-24, 28-32; Tr. at 19; Exhs. 2, 6). The respondent does not challenge the Immigration Judge's competency analysis or the sufficiency of safeguards, and we do not further address the Immigration Judge's findings on this issue.

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I. Claim to asylum and withholding of removal based on membership in a particular social group comprised of Mexican nationals lacking familial protection, forced to smuggle drugs, and marked for death by Mexican criminal organizations

With respect to the claim based on the respondent's membership in a particular social group comprised of Mexican nationals lacking familial protection, forced to smuggle drugs, and marked for death by Mexican criminal organizations, the Immigration Judge held that the drug cartels' mistreatment of the respondent rose to the level of persecution but did not have a nexus to a protected ground because the social group lacked the requisite particularity and social distinction to be cognizable under the Act,2 and because the respondent did not show that the cartels were motivated by the respondent's membership in the particular social group (I.J. at 34-42, 50-53).

Specifically, with regard to particularity, the Immigration Judge held that the proposed group was amorphous because the respondent did not show the limiting characteristics have commonly accepted definitions in Mexican society. With regard to social distinction, the Immigration Judge held that there was no evidence that the society would recognize the proposed group as belonging to a "separate or distinct segment of society" (I.J. at 40) (citing MatterofM-E-V-G-, 26 I&N Dec. 227, at 241 (BIA 2014)). On this point, the Immigration Judge found that there was little evidence that Mexican society views Mexican nationals without familial protection as a particular social group, that the respondent did not present society-specific evidence showing how Mexican society perceives Mexican nationals who have been forced to smuggle drugs and are marked for death by criminal organizations, that the respondent's counsel admitted the group "may not be visible to society in general" (Exh. 6, at 11 ), and that the respondent instead relied on the persecutor's perception. The Immigration Judge also found that the respondent testified that the cartels indiscriminately target young males, did not selectively target the respondent because of his lack of familial protection or his past experience smuggling drugs, and were not therefore motivated by the respondent's membership in the particular social group advanced (I.J. at 23, 41-42).

We are not persuaded by the respondent's appellate argument that the Immigration Judge did not consider the expert witness's credible testimony regarding the cartels' perception of the respondent and Mexican society's perception of the respondent in analyzing whether the particular social group was cognizable under the Act (Resp'! Br. at 13-17, 22-23; I.J. at 34-42). While we acknowledge the expert's credible testimony, the testimony cited by the respondent, in which the expert asserted that the respondent would be identified because of his speech and his physical appearance, does not support the respondent's claimed particular social group, which is not defined by speech or appearance. Moreover, on this record, we find no clear error in the

2 With regard to immutability, the Immigration Judge agreed with the respondent that he could not change his history with the cartels, but noted that his lack of family support was not immutable because he could reestablish contact with his family members in Mexico, and that whether a person is marked for death is not immutable because the organization could lose interest in killing that person (I.J. at 37).

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Immigration Judge's finding that the cartels were not motivated by the respondent's membership in the particular social group (l.J. at 23, 41-42). See Matter of N-M-, 25 I&N Dec. 526, 532 (BIA 2011) ("A persecutor's actual motive is a matter of fact to be determined by the Immigration Judge and reviewed by us for clear error."). In addition, while the respondent contends the expert testified that the respondent faces a greater likelihood of harm than other young men, he does not explicitly challenge, and we see no clear error in, the Immigration Judge's finding that the respondent admitted in his testimony that the cartels do indiscriminately target young males, and that the respondent himself was targeted for financial gain (l.J. at 23; Tr. at 85). Thus, we agree with the Immigration Judge that the respondent did not carry his burden to show he suffered past persecution or has a well-founded fear of persecution on account of his membership in the particular social group.

II. Claim to asylum and withholding of removal based on membership in a particular social group comprised of Mexican nationals who are indigent and suffer from severe mental illness

With respect to the claim based on the respondent's membership in a particular social group comprised of Mexican nationals who are indigent and suffer from severe mental illness, the Immigration Judge held that the respondent does not have a well-founded fear of harm on account of a protected ground because the feared harm does not rise to the level of persecution, because the country conditions evidence shows the government is not unable or unwilling to protect him, because the social group advanced lacks particularity and social distinction, and because the respondent did not show that the alleged persecutors would be motivated by the respondent's membership in the particular social group (1.J. at 42-50, 50-53).

We affirm the Immigration Judge's denial of asylum based on the second claim because we find no clear error in the Immigration Judge's finding that the harms the respondent fears, i.e., inadequate mental health care and inhumane conditions at . state-sponsored mental health institutions in Mexico, would not be motivated by the respondent's membership in the particular social group. See Matter of N-M-, supra, at 532. First, the Immigration Judge did not clearly err in finding that the availability of medication and access to quality healthcare is an obstacle affecting Mexican society as a whole (l.J. at 44-55). Second, the country conditions evidence in the record supports the Immigration Judge's finding that the conditions at state-sponsored mental health institutions are due to lack of funding (l.J. at 49-50; Exh. 6, Tab D, at 376-77, 3 79, 400, 412, 418, 429, 435).

The respondent argues that the Mexican government has been on notice for years that its mentally ill citizens are deprived of humane treatment, are institutionalized in locked facilities, and are vulnerable to mistreatment and abuse; that the Mexican government has made no significant efforts to move to a community-based system or to provide adequate treatment; and that the Immigration Judge should "infer ... the requisite specific intent to subject members of ... the proposed group to persecution" (Resp't Br. at 20-21). However, neither the report from Disability Rights International (Exh. 6, Tab D, at 337-51, 352-454) nor the 2013 U.S. Department of State Human Rights Report for Mexico (Exh. 6, Tab D, at 106-07) attributes a motive for the abuses identified in the reports. Moreover, as the Immigration Judge found, the country conditions evidence indicates that the Mexican government had shown a willingness to

3

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take action to improve mental health care treatment (I.J. at 45-46). For example, the Department of State report indicates that Disability Rights International had "noted that the changes represented positive signs that the country's mental health services were moving from an institution-based to a community-based mental health system" (Exh. 6, Tab D, at 106). Accordingly, we agree with the Immigration Judge that the respondent has not shown that his fear has a nexus to a protected ground.

Because we agree with the Immigration Judge's nexus determination, we find it unnecessary to address the respondent's appellate contentions that the Immigration Judge erred in holding that the second particular social group lacked particularity and was not socially distinct, and that the harm he faces from such services would rise to the level of persecution (Resp't Br. at 18-22, 22-23; I.J. at 46-48, 49).

Accordingly, we agree with the Immigration Judge that the respondent has not shown he suffered past persecution or has a well-founded fear of persecution on account of a protected ground for purposes of asylum, and it follows that the respondent has also not shown there is a clear probability his life or freedom will be threatened on account of a protected ground for purposes of withholding of removal (I.J. at 50-53). See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006) ("Since Zehatye could not establish her eligibility for asylum, the U properly concluded that she was not eligible for withholding of removal, which imposes a heavier burden of proof."). The respondent's appeal will be dismissed with respect to issues relating to asylum and withholding of removal under the Act.

III. Claim to protection under the Convention Against Torture based on cartel violence

With respect to protection under the Convention Against Torture, the Immigration Judge found that the respondent did not show the Mexican government was involved or would acquiesce in his torture by cartels or that he could not safely relocate to avoid harm from cartels (I.J. at 54-57). The Immigration Judge also determined that, even assuming the respondent would be committed to a mental health institution, he did not show there was a sufficient likelihood he would be subjected to treatment constituting torture at a mental health institution or that mental health care providers would act with the requisite intent to torture him (I.J. at 57-62).

With regard to his claim based on fear of cartel violence, the respondent argues that, in analyzing the Mexican government's acquiescence to torture perpetrated by Mexican criminal organizations, the Immigration Judge did not examine whether the government was able to protect the respondent from torture by Mexican criminal organizations, as required by Tapia-Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir. 2013) (Resp't Br. at 23-25). He also argues that the Immigration Judge did not properly consider all of the country conditions reports and credible expert testimony in analyzing the likelihood of torture, government acquiescence in such torture, and the respondent's ability to relocate in Mexico (Resp 't Br. at 26-30).

On review, we find it necessary to remand the record for the Immigration Judge to clarify the basis for her decision, to conduct further fact-finding, as necessary, and to issue a new decision regarding the respondent's claim to protection under the Convention Against Torture based on cartel violence. See Matter of A-P-, 22 I&N Dec. 468 (BIA 1999); see also Matter of S-H-,

4

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23 I&N Dec. 462 (BIA 2002). We are unable to reconcile the Immigration Judge's findings relating to the severity of the harm the respondent suffered, the cartels' quasi-governmental authority and apparent "ability to inflict torture on a whim," and the pervasiveness of government corruption,3 with her finding that the respondent did not show there was a clear probability that he would be tortured by the cartels "with the acquiescence of the Mexican government" (LJ. at 56).

Moreover, it is not clear whether the Immigration Judge applied the correct standard in considering whether the respondent's torture would be inflicted by or at the instigation of or with the consent or acquiescence of the "Mexican government," as opposed to a "public official or other person acting in an official capacity." See Tapia-Madrigal, supra, at 510 ("If public officials at the state and local level in Mexico would acquiesce in any torture Tapia Madrigal is likely to suffer, this satisfies CA T's requirement that a public official acquiesce in the torture, even if the federal government in Mexico would not similarly acquiescence."); accord Mendoza-Sanchez v. Lynch, No. 15-2551, 2015 WL 9310586, at *3 (7th Cir. Dec. 23, 2015) ("It's simply not enough to bar removal if the government may be trying, but without much success, to prevent police from torturing citizens at the behest of drug gangs.").

According! y, we will remand the record for further consideration of the respondent's eligibility for protection under the Convention Against Torture based on cartel violence. In addition to revisiting the issue of acquiescence, on remand, the Immigration Judge should further consider the possibility of internal relocation as one factor, among others, in deciding whether the respondent has satisfied his burden of proof. consistent with the United States Court of Appeals for the Ninth Circuit's intervening decision in Afaldonado v. Lynch, 786 F.3d 1155 (9th Cir. 2015) (en bane). To the extent the lmmigration Judge found that the respondent was exploited by the cartels near the border in connection with his attempts to enter the United States (LJ. at 18, 20), the Immigration Judge should conduct fact-finding to determine the effect, if any, of the respondent relocating away from the border on the likelihood of future torture.

IV. Claim to protection under the Convention Against Torture based on mental health

We are not similarly persuaded by the respondent's contention that the Immigration Judge erred in finding that Mexico's mental health institutions do not act with the specific intent to torture (Resp't Br. at 31-33). The respondent asserts that the consistent use of long-term restraints and arbitrary detention demonstrates a specific intent to torture, that Disability Rights

3 The Immigration Judge recognized that the respondent was "kidnapped, burned, and threatened by both cartels," and found that the respondent "submitted ample evidence ... describing the general violence perpetrated by the drug cartels and the corruption among law enforcement and military in Mexico," and supporting his assertions that he would be '"marked man' if he returns to Mexico because of his past dealings with the cartels," and that the "Mexican drug cartels, especially the Zetas cartel, wield enormous power in Mexico, control wide swaths of Mexican territory, . . . perpetuate large-scale crime and violence in Mexico," and "have the ability to inflict torture on a whim" (LJ. at 55).

5

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International noted that little had changed in such institutions between 2000 and 20 I 0, that the State Department noted that the government had failed to implement a community-based service system, despite a commitment to do so, and that the Mexican government's failure to improve the situation over the course of 10 years showed a lack of will to do so.

While we acknowledge the significant passage of time since the initial report from Disability Rights International was published, we agree with the Immigration Judge that the Ninth Circuit's decision in Villegas v. Afukasey remains controlling on this issue. As in Villegas, the respondent has not shown that the Immigration Judge clearly erred in finding that the substandard conditions at mental health institutions in Mexico "result from a lack of resources and training, not the result of a specific intent to torture those institutionalized in them" (I.J. at 62). Accordingly, we find no clear error in the Immigration Judge's determination that the respondent did not demonstrate that it is more likely than not that he would be tortured by or with the consent or acquiescence of a public official or other person acting in an official capacity (I.J. at 57-62). See 8 C.F.R. §§ 1208.16(c), 1208.18; Ridore v. Holder, supra, at 917-19 (observing that the Board reviews for clear error an Immigration Judge's findings regarding the sufficiency of evidence of future torture for purposes of the CAT). Therefore, we will uphold the ruling that the respondent did not establish eligibility for protection under the Convention Against Torture based on his mental health condition, and dismiss that issue on appeal.

Accordingly, the appeal will be dismissed in part and the record will be remanded. The following order will be entered.

ORDER: The respondent's appeal is dismissed in part and the record is remanded for further proceedings consistent with the foregoing discussion and the entry of a new decision.

6

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U.S. Dep11.rtment of Jnstice · Executive Office for Immigration Review



File: San Francisco, CA Date:

In re:


APPEAL AND MOTION


ON BEHALF OF DHS: Josh D. Friedman Assistant Chief Counsel

APPLICATION: Asylum; withholding of removal; adjustment of status

This case is before the Board pursuant to a 2007, order of the United States

Court of Appeals for the Ninth Circuit. 1 Subsequently, the respondent filed a motion to remand.

The Department of Homeland Security (DHS) requested additional time to respond to the motion

but has filed no response. The motion will be granted. Accordingly, the following orders will be

entered:


FURTHER ORDER: The record is remanded to the Immigration Judge for further

proceedings and the entry of a new decision.

1 The court's order was not brought to the Board's attention until February 2015.

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l).S. Department of .Justice Executive Office for Immigration Review



File: - Cleveland, OH Date: Ot:_; 3 i ~015

In re:


APPEAL


APPLICATION: Withholding ofremoval; Convention Against Torture

In a decision dated December 18, 2012, an Immigration Judge denied the respondent's applications for asylum, withholding of removal, and protection under the Convention Against Torture, but granted his application for voluntary departure. The respondent appealed that decision to the Board, and on June 12, 2014, we dismissed the appeal.

Based on a government motion, the Sixth Circuit has remanded to the Board to consider what effect the United States Court of Appeals for the Sixth Circuit's decision in Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009), has on the respondent's claim of membership in a particular social group, Hindu men who dated or were in a romantic relationship with a Muslim woman in defiance of traditional Indian cultural and religious customs forbidding such interreligious relationships. In Al-Ghorbani. supra, the Sixth Circuit held that those who oppose cultural and religious customs that prohibit mixed class marriages and require parental consent for marriage are part of a particular social group.

Under the circumstances and given our limited fact-finding ability, we find a remand is appropriate for the Immigration Judge to further consider whether the respondent established membership in a particular social group. The Immigration Judge may also address any other issues regarding the application that he deems appropriate.

ORDER: The record is remanded to the Immigration Judge for further proceedings.

FOR THE BOARD

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. U.S. Department of Justice Executive Office for Immigration Review


Falls Church, Virgh1ia 22041

Fiie: - New Orleans, LA Date:

In re:


APPEAL


ON BEHALF OF OHS: Robert Weir Assistant Chief Co=el

APPLICATION: Termination; remand; asylum; withholding ofremoval; Convention Against Torture

JAN f 4 2016

The respondent appeals the Immigration Judge's April 17, 2015, decision ordering her removed from the United States to Guatemala. The record will be remanded.

The Board reviews an Immigration Judge's findings of fact, including credibility determinations and the likelihood of future events, under a "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i); Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015). We review all other issues, including questions of law, judgment, or discretion, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii). The respondent's applications were filed after May 11, 2005, and therefore are governed by the provisions of the REAL ID Act. Matter of S-B-, 24 I&N Dec. 42 (BIA 2006).

Under the circumstances of this case, including the respondent's claimed cognitive deficit and her colorable claim that she was afforded ineffective assistance of counsel, we will remand to the Immigration Judge to permit the respondent to make any arguments concerning removability and to apply for any relief for which she may be eligible. On remand, the Immigration Judge may inquire into and make findings concerning the respondent's mental competency in accordance with Matter of M-A-1\1-, 25 I&N Dec. 4 74 (BIA 2011 ), if warranted.

ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with this order and for the entry of a new decision.

~·-~ FOR rnJ,AIID

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• Decision of the Board oflmmigration Appeals


File: - Harlingen, TX

In re:


APPEAL


ON BEHALF OF DHS: Caroline Clark Assistant Chief Counsel

CHARGE:

Date:

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] -Present without being admitted or paroled


JAN - ll 2016

The respondent, a native and citizen of Honduras, appeals from the Immigration Judge's order dated April 21, 2015, denying his motion to reopen his proceedings. The appeal will be sustained, proceedings will be reopened and the record will be remanded.

We review for clear error the Immigration Judge's findings of fact, including the determination of credibility. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues de novo, including whether the parties have met the relevant burden of proof and issues of discretion. 8 C.F.R. § 1003.l(d)(3)(ii).

The respondent entered the United States on or about 2014, as an unaccompanied minor and was placed in the custody of the Office of Refugee Resettlement. The respondent was released to his father, who resides in Chicago, Illinois, on or about 2014. In his motion to reopen, he claims that on January 23, 2014, he filed a motion to change venue from Harlingen, Texas to Chicago, Illinois. A copy ofthis motion to change venue was attached to the motion to reopen. The record of proceedings does not appear to contain a filed copy of this motion to change venue, however, and it was apparently never ruled upon. The respondent's father believed that venue was changed with the filing of the motion. The respondent was ordered removed in absentia when he failed to appear for his removal proceeding in Harlingen, Texas on September 10, 2014. The Immigration Judge, in denying the motion to reopen. noted that the hearing notices were mailed to the respondent at the Chicago, Illinois address listed on the release form and were not returned as undeliverable.

Upon de novo review, in light of the totality of circumstances presented in this case, including the respondent's age, the pro se filing of the motion to change venue before being reunited with his father, and the lack of ruling on that motion, we will sustain the appeal, reopen

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the record, and remand to allow the respondent another opportunity to appear for a hearing. See 8 C.F.R. § 1003.2(a).

ORDER: The appeal is sustained, the in absentia order is vacated, proceedings are reopened, and the record is remanded to the Immigration Court for further proceedings.

FURTHER ORDER: Venue is changed from Harlingen, Texas to Chicago, Illinois.

2

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• U.S; Department of Justice Executive Office for Immigration Review·



File: - Harlingen, TX

In re:


APPEAL


ON BEHALF OF OHS: Caroline Clark Assistant Chief Counsel

CHARGE:

Date:



JAIJ - 8 20W

The respondent, a native and citizen of Honduras, appeals from the Immigration Judge's order dated April 21, 2015, denying her motion to reopen her proceedings. The appeal will be sustained, proceedings will be reopened and the record will be remanded.

We review for clear error the Immigration Judge's findings of fact, including the determination of credibility. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues de novo, including whether the parties have met the relevant burden of proof and issues of discretion. 8 C.F.R. § 1003.l(d)(3)(ii).

The respondent entered the United States on or about 2014, as an unaccompanied minor and was placed in the custody of the Office of Refugee Resettlement. The respondent was served with a Notice to Appear on January 10, 2014. The respondent was released to her father, who resides in Chicago, Illinois, on or about 2014. In her motion to reopen, she stated that just before being reunited with her father, she filed a pro se motion to change venue from Harlingen, Texas to Chicago, Illinois, and she attached a copy of this motion to the motion to reopen. The record of proceedings does not appear to contain a filed copy of this motion to change venue, however, and it was apparently never ruled upon. The respondent was ordered removed in absentia when she failed to appear for her removal proceeding in Harlingen, Texas on September I 0, 2014. The Immigration Judge, in denying the motion to reopen, noted that the hearing notices were mailed to the respondent at the Chicago, Illinois address listed on the release form and were not returned as undeliverable. The respondent does not argue that she did not receive the notices of hearing, but rather argues that the Immigration Judge erred in failing to rule on the motion to change venue, and that her father, who submitted an affidavit, understood that venue had been changed to Chicago with the filing of the motion.

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'

Upon de novo review, in light of the totality of circumstances presented in this case, including the respondent's age, the pro se filing of the motion to change venue before being reunited with her father, and the lack of ruling on that motion, we will sustain the appeal, reopen the record, and remand to allow the respondent another opportunity to appear for a hearing. See 8 C.F.R. § 1003.2(a)

0 RD ER: The appeal is sustained, the in absentia order is vacated, proceedings are reopened, and the record is remanded to the Immigration Court for further proceedings.

FURTHER ORDER: Venue is changed from Harlingen, Texas to Chicago, Illinois.

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·U.S. Department of Justice Executive Office for Immigration Review


File: - Lancaster, CA

In re:


APPEAL


Date:

JAN I 4 2fi16


CHARGE:


APPLICATION: Withholding ofremoval

This case was last before us on November 17, 2011, when we sustained the Department of Homeland Security's ("DHS") appeal from the Inunigration Judge's decision granting the respondent's application for withholding of removal under section 241 (b )(3) of the Immigration and Nationality Act, 8 U.S.C. § 123l(b)(3). The matter is now before us pursuant to a

, 2015, order of the United States Court of Appeals for the Ninth Circuit (the "Ninth Circuit''). The DHS's appeal will now be dismissed, and the record will be remanded.

In our November 17, 2011, decision, we found clear error in the Immigration Judge's finding that the respondent's race or ethnicity was at least one central reason for the attacks on the respondent by gang members. 1 However, in the , 2015, order, the Ninth Circuit found that we failed to apply the clearly erroneous standard of review in our "'on account of' finding. See 8 C.F.R. § !003.l(d)(3)(i); Regalado-Escobar v. Holder, 717 F.3d 724, 726-27 (9th Cir. 2013) (holding that whether an alien has suffered harm "on account of' his protected status is a question of fact to be reviewed by the Board for clear error). Specifically, the Ninth Circuit found that we erred in applying a de novo standard of review and relied on our own interpretation of the respondent's testimony.

In light of the Ninth Circuit's , 2015, order, and the respondent's credible testimony that he was targeted in part based on his Asian appearance, we find no clear error in the Immigration Judge's finding that the respondent's race or ethnicity was at least one central

1 We also determined that the Immigration Judge erred in determining that the respondent established a cognizable particular social group consisting of young men resisting gang recruitment in Honduras who are subject to discrimination or attacks on the basis of Asian appearance and ethnicity. However, this detemtination is not at issue in the Ninth Circuit's remand.

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reason for the attacks that he suffered by gang members. We therefore find it necessary to dismiss the appeal and remand proceedings to the Immigration Judge for the sole purpose of conducting the necessary background checks.


ORDER: The DHS' s appeal is dismissed.


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U~S. Department of Justice Executive Office for Immigration Review


File: - Las Vegas, NV

In re:


APPEAL


Date:


ON BEHALF OF OHS: Christian Parke Assistant Chief Counsel

CHARGE:

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § ! 182(a)(6)(A)(i)J -Present without being admitted or paroled

APPLICATION: Asylwn; withholding of removal; Convention Against Torture; voluntary departure

The respondent, a native and citizen of El Salvador, appeals from the Immigration Judge's decision dated May 21, 2015, denying his application for asylwn, withholding of removal, and protection under the Convention Against Torture ("CAT"). The Department of Homeland Security ("OHS") opposes the appeal. The appeal will be dismissed, in part, and remanded for further consideration of the respondent's request for voluntary departure.

We review for clear error findings of fact, including credibility findings, made by the Immigration Judge. See 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion and judgment. See 8 C.F.R. § I 003.l(d)(3)(ii). The respondent's application for relief was filed after May 11, 2005; therefore, the statutory amendments made by the REAL ID Act of 2005 apply. See Matter ofS-B-, 24 I&N Dec. 42 (BIA 2006).

The Immigration Judge determined that the respondent is statutorily barred from asylwn because his asylum application was not tin1ely filed, and he did not demonstrate changed circwnstances to excuse the untimely asylum application (l.J. at 3-5). See sections 208(a)(2)(B) and (D) of the Immigration and Nationality Act, 8 U.S.C. §§ l l 58(a)(2)(B), (D); 8 C.F.R. §§ 1208.4(a){2), (4). ll1e respondent does not contest that his asylwn application was untimely (Respondent's Brief at 4). He came to the United States in 2005, but did not file his asylum application until March 201 S (l.J. at 3; Exhs. I, 3; Tr. at 3-8). We agree with the Immigration Judge that the respondent has not shown changed circumstances to excuse the untimely filing within the meaning of 8 C.F.R. § 1208.4(a)(4)(i), based on the alleged threats to the respondent's life made by his mother's ex-boyfriend, (l.J. at 4). The Immigration Judge properly determined that the respondent did not provide specific information about how had knowledge that the respondent was in removal proceedings in the

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· United States or that began to threaten his life since the respondent has been in custody (I.J. at 4; Respondent"s Brief at 3-5; Tr. at 13-18). Therefore, the Immigration Judge properly determined that the respondent is statutorily barred from asylum. See sections 208(a)(2)(B) and (D) of the Act.

We further agree with the Immigration Judge that even if the respondent's application was timely, he did not meet his burden to establish that he is a member of a particular social group within the meaning of the Act, or that he has a well-founded fear of future persecution in El Salvador based on a protected ground, including his claimed particular social group of "extended family members of a domestic violence victim" (l.J. atS-7; Tr. at 14-17, 21-23, 36-39). See section 208(bj(l)(B)(i) of the Act, 8 U.S.C. § l 158(b)(l)(B)(i); Matter ofW-G-R-, 26 I&N Dec. 208, 223-24 (finding that even if the alien were a member of 21 cognizable particular social group, he did not demonstrate that the harm he feared bore a nexus to his status as a member of that group); see also Matter ofM-E-V-G-, 26 l&N Dec. 227, 237 (BIA 2014).

The respondent testified that he, himself, was never a victim of domestic violence (I.J. at 5; Tr. at 16). He alleges that , his mother's ex-boyfriend, was abusive towards his mother, and that he and his siblings counseled her to leave the relationship (l.J. at 3-4; Tr. at 21-22). As a result, became angry with his mother's family in El Salvador and repeatedly threatened them (I.J. at 5; Tr. at 14-18, 22-23, 36-39). Furthermore, the respondent alleges that began to threaten him since he was placed in removal proceedings (I.J. at 3-4; Tr. at 17).

However, the Immigration Judge properly determined that the respondent's purported social group "extended family members of domestic violence victims" is not cognizable (1.J. at 5-6). Specifically, we agree with the Immigration Judge's conclusion that the facts posited by the respondent are distinguishable from the facts set forth in Matter of A-R-C-G-, 26 l&N Dec. 388 (BIA 2014) (holding that in certain circumstances, married women who are unable to leave their relationship may constitute a cognizable particular social group that forms a basis of an asylum claim) (see l.J. at 5-6). In Matier ofA-R-C-G-. supra, at 389, 393, the respondent was unable to leave her relationship and the police refused to assist her. Here, the respondent's mother was never man-ied to , the respondent's mother reported the abuse to the police,

was placed in jail, and the respondent's mother obtained a restraining order against him (l.J. at 5-6; Tr. at 14, 16, 38-39). Moreover, the respondent has not shown that El Salvadoran society perceives, considers, or recognizes "extended family members of domestic violence victims" to be a cognizable group. See id. at 393-94.

Additionally, we agree with the hnmigration Judge that it is unclear if is in El Salvador such that the respondent would be subject to harm if he was returned there, or that any mistreatment he might experience would arise on account of his membership in a particular social group (l.J. at 4-7). The respondent testified that he had never been threatened by

before he was placed in removal proceedings, and he was uncertain if was presently in El Salvador or the United States (l.J. at 3-4; Tr. at 16-18). The respondent's sister alleged in a May 2015 declaration that illegally returned to the United States 6 months ago and threatened her and her brothers, but was now back in El Salvador (l.J. at 6; Exh. 5 at 1-2). The respondent's maternal aunt testified that had been in

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· the United States recently, but also alleged that he was presently in El Salvador (l.J. at 5-6; Tr. at 37-39). Therefore, the Immigration Judge properly determined that the respondent did not show that would know where the respondent is ifhe is removed to El Salvador, would be in the respondent's location, or that any hann he would be subject to from

would be on account of a protected ground (l.J. at 5-6). In the absence of solid support in the record the respondent's fear is speculative. See IlllS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987) (noting that a well-founded fear does not require high probability of persecution, but does require "an objective situation ... established by the evidence") (quoting INS v. Stevie, 467 U.S. 407, 424-25 (1984)).

We also agree with the Immigration Judge that the respondent has not met his burden of establishing that it is more likely than not he will be subject to torture that is "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity" if returned to El Salvador (l.J. at 8 ). The respondent testified that he has never been harmed by when he lived in El Salvador and, at any rate, the respondent does not allege government involvement or that a government official will be willfully blind to torture (l.J. at 3-4, 8; Tr. at 16-18). See 8 C.F.R. §§ 1208.16(c), 1208.IS(a)(l)-(5); Matter of M-B-A-, 23 I&N Dec. 474 (BIA 2002); Matter of J-E-, 23 l&N Dec. 291 (BIA 2002); }.fatter ofY-L-, A-G-, R-S-R-, 23 I&N Dec. 270 (A.G. 2002). Hence, we will affirm the Immigration Judge's denial of the respondent's request for protection under the CAT.

With respect to the respondent's application for voluntary departure, we find that a remand is necessary. The Immigration Judge granted the respondent the privilege of post-conclusion voluntary departure without the payment of a bond, but with the added safeguard that he present a passport and airline ticket to the DHS within 30 days of the Immigration Judge's order (l.J. at 9-10). The respondent was in the custody of the DHS without bond at the time that the Immigration Judge issued his May 2015 order, and therefore, a voluntary departure bond was not required (l.J. at 9-10). See Matter of M-A-S-, 24 l&N Dec. 762, 766 (BIA 2009). However, the respondent was subsequently released from custody in July 2015 (see ROP, Respondent's Notice of Custody Change to Non-Detained Status dated July 7, 2015).

An alien who is eligible for post-conclusion voluntary departure may be permitted to voluntarily depart the United States for a period of up to 60 days, but a minimum bond of $500 must be set. See section 240B(b) of the Act; 8 C.F.R. §§ 1240.26(c), (e). Furthermore, there is no indication in the record whether the respondent met the added safeguards attached by the Immigration Judge before he was released from custody (see i.J. at 9-10). Therefore, under the circumstances, we will remand the record solely for the Immigration Judge to reassess the respondent's eligibility for voluntary departure in accordance with the statute and the regulations.


ORDER: The appeal is dismissed.

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FURTHER ORDER: The record is remanded to the Immigration Judge to reconsider or reinstate the grant of voluntary departure.

FOR THE BOARD

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·U.S. Department of Justice Executive Office for Immigration Review


File: -New York, New York

In re:


APPEAL


Date: JAN - b 2015


APPLICATION: Asylum, withholding of removal, Convention Against Torture

This case was last before the Board on December 20, 2012, when we dismissed an appeal of an Immigration Judge's August 11, 2011, decision. On 2015, the United States Court of Appeals for the Second Circuit remanded the case to the Board. The respondent filed a brief after remand along with new evidence. The record will be remanded.

We review an Immigration Judge's findings of fact, including the credibility determination, under the "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including whether the parties have met the relevant burden of proof, and issues involving questions oflaw, judgment and discretion, under a de novo standard. 8 C.F .R. § 1003.l(d)(3)(ii).

The Immigration Judge made an adverse credibility determination and denied the respondent's applications. In the alternative, even if credible, the Immigration Judge determined that the respondent's mistreatment did not constitute persecution. We affirmed the Immigration Judge's adverse credibility finding, and her alternative finding that the respondent had not established past persecution.

On , 2015, the Second Circuit remanded the case to the Board. The Court noted that, although the respondent's application was governed by the REAL ID Act of 2005, the Immigration Judge's adverse credibility finding did not refer to the REAL ID Act specifically and only referenced one pre-REAL ID Act Board precedent which did not involve a credibility fmding. In addition, the Second Circuit observed that our decision did not provide sufficient analysis of the Immigration Judge's adverse credibility finding under the REAL ID Act. Finally, the Court remanded because the Immigration Judge's and the Board's finding about past persecution did not appear to take into account the custodial nature of the respondent's mistreatment which is a relevant factor under applicable circuit precedent.

We will remand the record to the Immigration Judge to expressly assess the respondent's credibility under the governing REAL ID Act standards, and to make additional factual findings on the nature of the respondent's mistreatment and the likelihood of future persecution. In addition, remand will provide the Immigration Judge the opportunity to consider the new evidence submitted after remand. 1

1 In his brief filed after remand, the respondent requests that the record be remanded to the Seattle Immigration Court. The respondent may present his change of venue request to the New York Immigration Court.

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FOR THE BOARD

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U.S. Department of Justice Executive Office for Immigration Revie-'•

Falls Church, Virginia22041


In re:


APPEAL


Date:

JAN - 7 2lH5



This case is before the Board pursuant to a 2015, order of the United States Court of Appeals for the Second Circuit. The Second Circuit requested that the Board reconsider a portion of our January 30, 2014, decision dismissing the respondent's appeal from the Immigration Judge's decision denying his application for asylum, withholding of removal and protection under the Convention Against Torture ("CAT"). See sections 208(b)(l)(A), 24!(b)(3)(A) of the Immigration and Nationality Act ("Act") 8 U.S.C. §§ 1158(b)(l)(A), 123!(b)(3)(A) and 8 C.F.R. § 1208.!6(c)(2). The record will be remanded to the Immigration Judge.

We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. § I 003. l(d)(3)(ii). The respondent submitted his application after May 11, 2005, and it is governed by the REAL ID Act. See Matter ofS-B-, 24 I&N Dec. 42, 43 (BIA 2006).

The Court remanded the record for further consideration of the respondent's claim that he would be persecuted in Guinea based on his affiliation with two political parties that opposed Guinea's ruling party, the Party for Unity and Progress ("PUP"). 1 The respondent testified that he would be persecuted in Guinea based upon his membership in the Union of the New Republic Party ("UNR") and the Union of Republican Forces Party ("UFR") (1.J. at 17-18; Tr. at 30-31 ). The Immigration Judge concluded that the respondent did not have a fear of persecution in Guinea on account of his political opinion based upon the respondent's testimony that the Rally for the Guinean People Party ("RPG") had succeeded the PUP as the ruling party. The Second Circuit concluded that the Immigration Judge's reasoning was based upon evidence that may not be directly relevant to his claim, inasmuch as the respondent did not base his claim upon membership in the RPG.

In compliance with the Second Circuit's order, we will remand this matter for the Immigration Judge to reassess the respondent's claims and make findings on the country conditions evidence and any other corroborating evidence submitted by the respondent, as

' The Second Circuit Court of Appeals affirmed our determination that the respondent did not satisfy his burden to establish a well-founded fear of persecution based on his ethnicity, and that issue is not before us.

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appropriate. The parties should be afforded the opportunity to supplement the record with additional evidence and arguments.

Accordingly, the following order shall be entered.


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File: - Boston, MA

Inre:


APPEAL


Date:


APPLICATION: Asylwn; withholding ofremoval; Convention Against Torture

This case is presently before us pursuant to the order of the United States Court of Appeals for the First Circuit dated , 2015. The record will be remanded for further proceedings.

This matter was previously before this Board on February 20, 2013, when we dismissed the respondent's appeal from the Immigration Judge's decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture. We affirmed the Immigration Judge's adverse credibility determination and her conclusion that the respondent's corroborative evidence did not rehabilitate his discredited testimony or independently satisfy his burdens of proof and persuasion. Subsequently, the respondent filed a petition for review before the First Circuit.

The First Circuit remanded the case to the Board after concluding that two of the primary bases for the adverse credibility finding are not present in the record. v. Lynch,

(!st Cir. 2015). The court concluded that the respondent consistently alleged his hip injury and his cousin's beheading, and that his failure to restate the harmful incidents in his supplemental statement, which was contemporaneously-filed with his asylwn application, is not an omission or inconsistency. Thus, the court remanded the record to the Board to re-evaluate the respondent's credibility and to "determine whether any of the remaining purported inconsistencies are sufficient to discredit a portion or all of his account." Id. at 229.

We conclude that a remand to the Immigration Judge is warranted for further fact-finding and analysis of the respondent's eligibility for relief and protection from removal, including a further evaluation of the respondent's credibility. 8 C.F.R. § 1003.l(d)(3)(iv) (limiting the Board's factfinding authority). On remand, the burden of proof remains with the respondent to establish eligibility for the relief sought.


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Decision of the Board of Immigratioo Appeals


File: - New York, NY Date: JAN - ~ 21H6

In re:


MOTION



The respondent has filed a motion to reopen. The Department of Homeland Security has not filed a reply to the motion, and it is therefore deemed unopposed. See 8 C.F.R. § 1003.2(gX3). The record will be reopened and remanded.

Given the totality of the circumstances presented by the motion, including the information concerning the asylum application filed by the respondent's wife, we find it appropriate to reopen proceedings and remand the record to the Immigration Judge to allow the respondent to apply for whatever relief for which he may now be eligible. 1 Proceedings will be reopened pursuant to 8 C.F.R § 1003.2(a).

ORDER: The proceedings in this matter are reopened pursuant to 8 C.F.R § 1003.2(a).


FOR THE BOARD

1 It appears that the respondent's wife was granted asylum by an Immigration Judge in 2015.

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U.S. Department of Justice EY,ecutive Office for Immigration Review

Decision of the Board oflnunigration Appeals


File: - Bloomington, MN Date:

In re:


APPEAL


ON BEHALF OF THE DHS: Darrin Hetfield Assistant Chief Counsel

JAJI 1 1 23~5

APPLICATION: Asylum; withholding ofremoval; Convention Against Torture; voluntary departure

This case is before the Board pursuant to a , 2015, order of the United States Court of Appeals for the Eighth Circuit. The court has remanded this case for us to address that portion of the respondent's appeal, challenging the Immigration Judge's denial of the respondent's request for voluntary departure which we did not address in our June 27, 2013, decision. Upon review of the Immigration Judge's decision, however, we find that the decision is inadequate for appellate review because it fails to contain any findings of fact with respect to the respondent's statutory eligibility for voluntary departure. The Immigration Judge's decision is likewise unclear whether voluntary departure was denied strictly in the exercise of discretion. Accordingly, the record will be remanded for further proceedings not inconsistent with the Eighth Circuit's order and limited to the issue of voluntary departure. See 8 C.F.R. § 1003.l(d)(3)(iv) (stating that the Board may not engage in fact finding in the course of deciding appeals except for taking administrative notice of commonly known facts). At the remanded hearing, both parties shall be provided with an opportunity to present additional evidence, both testimonial and documentary.

Accordingly, the following order will be entered:

ORDER: The record is remanded to the Immigration Judge for further proceedings and the entry of a new decision.

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,.



File: - York, PA


Date:

In re:


APPEAL


ON BEHALF OF OHS: Richard S. O'Brien Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] -Convicted of aggravated felony

APPLICATION: Asylum, withholding of removal, Convention Against Torture

In a decision dated July 24, 2015, the Immigration Judge denied the respondent's application for withholding of removal under section 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 123l(b)(3), but granted her application for protection under the Convention Against Torture ("CAT"), 8 C.F.R. §§ 1208.17-.18. The Department of Homeland Security ("OHS") has filed an appeal of the Immigration Judge's grant of CAT protection. The respondent opposes the OHS' appeal. The DHS' appeal will be dismissed.

We review the findings of fact, including the determination of credibility, under a "clearly erroneous" standard. See Matter of S-H-, 23 I&N Dec. 462 (BIA 2002); 8 C.F.R. § 1003.l(d)(3)(i); see also Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015). We review all other issues, including issues of law, judgment, or discretion, wider a de novo standard. 8 C.F .R. § !003.l(d)(3)(ii). Because the CAT application was filed after May 11, 2005, it is governed by the provisions of the REAL ID Act of2005. See Matter ofS-B-, 24 I&N Dec. 42 (BIA 2006).

To qualify for deferral of removal under the CAT, an applicant must prove that he or she will be tortured upon return to his or her native country, and that the act will be instigated by or with the consent or acquiescence of a public official or other person acting in an official capacity. 8 C.F.R. § 1208.18(a)(l); Pierre v. U.S. Att'y Gen. 528 F.3d 180, 184-85 (3d Cir. 2008) (en bane); Matter ofY-L-, A-G- & R-S-R-, 23 I&N Dec. 270 (A.G. 2002). Torture is defined as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind." 8 C.F.R. § 1208.18(a)(l); see also Reyes-Sanchez v. U.S. Att'y Gen., 369 F.3d 1239, 1242 (I Ith Cir. 2004). Torture is an extreme form of cruel and inhuman treatment, which does not include lesser forms of cruel, inhunJan, or

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degrading treatment or punishment. 8 C.F.R. § 1208.18(a)(2). An applicant for withholding or deferral of removal under the Convention bears the burden of proof that it is more likely than \Jot that he or she would be tortured if removed to the proposed country of removal. 8 C.F.R. §§1208.16(c)(2) and 1208.17(a); Matter of M-B-A-, 23 I&N Dec. 474, 479-80 (BIA 2002). Whether an applicant has satisfied his or her burden of proof is, in at least some circumstances, a legal conclusion that we review de novo. See 8 C.F.R. § 1003.l(d)(3)(ii).1

The respondent, a native and citizen of Haiti, testified that she was sexually abused by her uncle, a Haitian police officer, when she was a young girl (l.J. at 7; Tr. at 66-75, 142-44). Also, the respondent testified that in 2011, she was kidnapped, raped, threatened, beaten, and held against her will for 7 days by a group of men when she traveled to Haiti to attend her grandmother's funeral (l.J. at 8-9; Tr. at 85-112). The respondent maintains that she more likely than not would suffer rape and torture by or with the acquiescence (including the concept of willful blindness) ofa public official of Haiti.

The Immigration Judge determined that the respondent demonstrated eligibility for CAT protection (l.J. at 17-18). To that end, the Immigration Judge considered the respondent's credible testimony that she had been raped repeatedly by her uncle and by the men that kidnapped her in 2011. Further, the Immigration Judge took into consideration the testimony of the respondent's expert vvitness who testified that the respondent would be at substantial risk of being targeted for kidnapping and sexual assault if she is returned to Haiti (l.J. at 12). The respondent's witness further testified that the respondent would not receive effective protection from the social, legal, or criminal justice systems in Haiti (l.J. at 12; Tr. at 175-77). The witness testified that women do not have power or protection in Haiti (l.J. at 14). The respondent's •vitness averred that since the devastating earthquake which struck Haiti in 2010, instances of gang rape have increased and that the Haitian police are not willing to invest its resources in protecting women who are victims of sex crimes (LJ. at 13-14; Tr. at 181-82). The Immigration Judge also found persuasive the country reports of record which support the testimony of the respondent and her expert witness that it is more likely than not that the respondent would be subjected to rape and further harm by or with the acquiescence (including the concept of willful blindness) of a public official of Haiti upon her removal (l.J. at 17-18; Exh. 3 at 32).

We do not find clear error in the Immigration Judge's findings, including her prediction that the respondent is more likely than not to be tortured in the future. See Matter of Z-Z-0-, supra. Hence, we will affirm the Immigration Judge's grant of CAT protection to the respondent.

1 The United States Court of Appeals for the Third Circuit (The Third Circuit), in which the present case arises, held that the Board erred in reviev.<ing the finding of a probability of torture de novo. See Kaplun v. U.S. Att'y Gen., 602 F.3d 260 (3d Cir. 2010). The Third Circuit determined that the Board was required to review the factual aspects of that inquiry for clear error and was entitled to review only the legal aspects of the inquiry de novo, and that the question of the likelihood of feared events was factual. Id. We have followed that Circuit precedent here.

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ORDER: The OHS' appeal is dismissed.

FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the DHS the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F .R. § 1003 .4 7(h).

Board Member Roger A. Pauley respectfully dissents and would sustain the appeal. The Inunigration Judge's finding of a likelihood the respondent will be raped is without evidentiary support and is clearly erroneous.

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File: - Oakdale, LA Date: JAN - 7 Z016 In re:


APPEAL


APPLICATION: Withholding of removal; Convention Against Torture

The applicant is a native and citizen of El Salvador. He was placed in withholding of removal-only proceedings by the issuance of a Form 1-863 (Referral to an Immigration Judge) because the Department of Homeland Security reinstated a prior order of removal and an asylum officer determined that the applicant had a reasonable fear of persecution or torture. On July 20, 2015, an Immigration Judge denied the applicant's application for withholding of removal under section 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3), as well as his request for protection pursuant to the United States' obligations under the Convention Against Torture ("CAT").

The applicant now appeals. His request for a waiver of the appellate filing fee is granted. See 8 C.F.R. § 1003.8(a)(3). The appeal will be dismissed in part and sustained in part. The record will be remanded.

We review an Immigration Judge's findings of fact, including fmdings regarding witness credibility and what is likely to happen to the applicant, under a "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i); Matter ofZ-Z-0-, 26 l&N Dec. 586 (BIA 2015). We review all other issues, including questions of law, discretion, and judgment, under a de novo standard. 8 C.F .R. § 1003.l(d)(3)(ii). The applicant's application was filed after May 11, 2005, and thus is governed by the REAL ID Act. Matter of S-B-, 24 I&N Dec. 42 (BIA 2006).

The applicant testified that in 2012 he was contacted through text messaging to make "rent" payments, i.e .. extortion payments, for his bakery. He reported the phone number to the police. The police eventually arrested the individual responsible for making the extortion demands, and the individual was convicted (l.J. at 7-8; Tr. at 27-29, 30, 58-60, 70-72).

From 2011 to 2013, the applicant was the president of his community's board of directors, which helped the community by promoting agricultural development, and by providing services such as a clinic, an infant center, a library, and a school. The applicant testified that after a 13- or-14-year old girl was killed in the community, the board installed gates and street lights. The applicant and two other board members contacted a resident who also was a police chief in a neighboring area to inquire about setting up a police post in the community. A police post was added to the community in late 2013 (l.J. at 6; Tr. at 34-39, 41-45, 47, 56-57, 74, 77).

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On 2014, five unknown individuals attacked the applicant. The applicant assumed the individuals were gang members. The individuals warned the applicant to kick the police out of the community. They also threatened the applicant by indicating that they knew where his son and wife attended school. The applicant testified that he sent his wife and child to the United States because he believed the individuals would fulfill their threat (I.J. at 7, 9; Tr. at 48-50, 55, 58). 1

The applicant testified that after the 2014, incident, the resident who was the police chief in the neighboring area was killed. During the police chiefs funeral a friend told the applicant that he had received a telephone call indicating that the applicant was next to be killed. The applicant decided not to return to his home community out of fear. Family members encouraged him to file a police report, which he did on 2014. The applicant left El Salvador for the United States on 2014. He fears that the individuals who threatened him, who he believes are gang members, will fulfill their threat (I.J. at 7; Tr. at 51-53, 54, 61, 63, 66-67, 83).

We affirm the Immigration Judge's finding that the applicant did not sufficiently demonstrate past persecution (l.J. at 8). The applicant testified that his attackers on 2014, threw him to the ground and one of them placed a foot on the applicant's neck. The applicant did not indicate that he was physically injured as a result of the attack (I.J. at 8; Tr. at 58). The United States Court of Appeals for the Fifth Circuit, under whose jurisdiction this case arises, has stated that persecution must be extreme conduct to qualify for protection under the Act. See Majdv. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006); see also Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir. 2004) (stating that problems of discrimination and harassment are not significant enough harm to be considered persecution). We conclude that the 2014, incident did not rise to the level of persecution.

We also affirm the Immigration Judge's determination that the applicant did not demonstrate a basis for withholding of removal based on the extortion demands made in 2012 (I.J. at 8-9). The Fifth Circuit does not recognize economic extortion in and of itself as a basis for relief under the Act. See Garcia v. Holder, 756 F.3d 885, 890 (5th Cir. 2014); see also Ca~tellanos-Pena v. Holder, 499 Fed. Appx. 331 (5th Cir. 2012).

We conclude, however, that a remand is warranted regarding whether the applicant demonstrated on an alternative basis that he would more likely than not be persecuted on account of a protected ground if returned to El Salvador. See 8 C.F .R. § 1208. l 6(b )(2); see also INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); INS v. Stevie, 467 U.S. 407 (1984). Although the Immigration Judge determined that the applicant did not establish a nexus to any protected ground for purposes of past and future persecution, the Immigration Judge did not consider specifically the applicant's claim that he would more likely than not be persecuted on account of his membership in a particular social group defined at the hearing as "members of the elected

1 The applicant's United States citizen daughter already was living in the United States with a relative in order to attend school (I.J. at 5; Tr. at 20, 21).

2

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board of directors of the community association of his community who have been particularly targeted because of their role as de facto community leaders in their community" (Applicant's Br. at 17; Tr. at 13). 2 We limit the issue to future persecution because, as stated, the

2014, incident did not rise to the level of persecution. Thus, on remand, the Immigration Judge should give the parties an opportunity to address the applicant's particular social group claim, and to introduce additional evidence pertaining to that or any other remaining issue. The Immigration Judge should consider our decisions in lvfatter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014), in which we clarified the elements required to establish a cognizable particular social group.

Additionally, the Immigration Judge did not apply the correct burden of proof (Applicant's Br. at 13-14). The applicant fears persecution upon returning to El Salvador in part because of the murder of the police chief who helped bring a police post to the community. In finding that the applicant did not establish that the murder was tied to the applicant's work on the community's board of directors, the Immigration Judge stated, "So the mere death of the chief of police more than a year after the post was put in place does not establish evidence which is clear and convincing that it had anything to do with the association" (I.J. at 11 ). The Immigration Judge also found "that the applicant has not established that he would be persecuted by evidence which is clear and convincing should he return to El Salvador" (l.J. at 13). The applicant has the burden of proof of establishing his claim of withholding of removal by a preponderance of the evidence. See Matter of Acosta, 19 I&N Dec. 211, 215 (BIA 1985). An alien is subject to the clear and convincing evidence standard in a case in which (for example) the alien has to prove that he is lawfully present in the United States pursuant to a prior admission, which is not the case at hand. See section 240(c)(2) of the Act, 8 U.S.C. § 1229a(c)(2). On remand, when applying the correct standard, the Immigration Judge also should identify and consider record evidence that she may not have considered previously regarding the applicant's fear of persecution, including expert witness testimony and documentary evidence submitted by the applicant (Applicant's Br. at 15-17).

The applicant challenges the Immigration Judge's credibility finding (Applicant's Br. at 12-13). The Immigration Judge found the applicant to be credible but stated that there might be some reason to doubt the applicant's testimony regarding the 2014, incident (I.J. at 5). The Immigration Judge, however, did not clearly indicate whether the testimony regarding the incident was not credible. Thus, we afford the applicant the rebuttable presumption of credibility on appeal. See sections 208(b)(l)(B)(iii), 240(c)(4)(C) of the Act.

2 The applicant through counsel defined the particular social group in response to the Immigration Judge's request (Tr. at 13). We note that the transcript reflects the counsel's stating "present informer" before "members of the elected board" (Tr. at 13). We question whether counsel may have stated "present and former" but transcription error resulted in the words being reflected as "present informer."

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Finally, the applicant asserts that the Immigration Judge did not consider all of the record evidence pertaining to his request for protection under the CAT (Applicant's Br. at 14-17).3

Given our decision to remand, we decline to address the applicant's CAT claim on appeal. Rather, on remand, the Immigration Judge also should identify and consider record evidence that she may not have considered in her prior denial of the applicant's request for protection under the CAT, including expert witness testimony and documentary evidence relevant to whether the applicant has a clear probability of torture (Applicant's Br. at 15-17).

Accordingly, the following orders shall be entered.

ORDER: The appeal of the Immigration Judge's findings of no past persecution, and a lack of nexus pertaining to the 2012 extortion, is dismissed.

FURTHER ORDER: The appeal of the Immigration Judge's determination that the applicant did not meet his burden to show a clear probability of persecution for withholding of removal purposes is otherwise sustained.

FURTHER ORDER: The record is remanded for further proceedings consistent with this opinion and for the entry of a new decision.

3 The applicant argues on appeal that the Immigration Judge did not apply the correct standard of proof for withholding of removal and CAT (Applicant's Br. at 13). Our review reflects that the Immigration Judge only specified the wrong standard for withholding of removal.

4

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U.S. Department of Justice Exec\ltive Ofi\ce for Jmmigration Review



File: - Tacoma, WA Date: JAN - 6 2ms Inre:


APPEAL


CHARGE:

Notice: Sec. 237(a)(2)(A)(iii), l&N Act (8 U.S.C. § 1227(a)(2)(A)(iii)] -Convicted of aggravated felony (as defined in section 101(a)(43)(F))

APPLICATION: Adjustment of status; section 212(h) waiver

The respondent, a native and citizen of Samoa, is a lawful permanent resident of the United States. The respondent appeals the August 1, 2015, denial of his application for adjustment of status under section 245{a) of the hnmigration and Nationality Act, 8 U.S.C. § 1255(a), in conjunction with a waiver pursuant to section 212(h) of the Act, 8 U.S.C. § 1182(h). The hnmigration Judge denied a section 212(h) waiver in the exercise of discretion. The appeal will be sustained.

The Board reviews an Immigration Judge's findings of fact for clear error. § 1003.l(d)(3)(i). We review issues of law, discretion. or judgment de novo. § 1003.l(d)(3)(ii).

8 C.F.R. 8 C.F.R.

On 2013, the respondent was convicted of Assault in the Second Degree in violation of sections 9A.36.02l(l)(a), (c), and (g) of the Revised Code of Washington (I.J. at 2, 15; Exh. 2). He was sentenced to 21 months of imprisonment (I.J. at 6; Exh. 2). Through counsel, the respondent conceded that his conviction was for an aggravated felony, as defined in section 101(a)(43)(F) of the Act, 8 U.S.C. § l lOl(a)(F) (1.J. at 2; Tr. at 9-10). The respondent also admitted that he was convicted of a crime involving moral turpitude. rendering him inadmissible under section 212(a)(2)(A)(i)(I) of the Act and necessitating a section 212(h) waiver (Respondent's Pre-Hearing Statement at 6).

The respondent bears the burden of establishing that his application for relief should be granted in the exercise of discretion. 8 C.F.R. § 1240.S(d). On appeal, the respondent argues that the Immigration Judge erred in holding that his conviction was for a "violent or dangerous crime," thereby warranting application of the exceptional and extremely unusual hardship standard to his application for a section 212(h) waiver (I.J. at 15-16). See 8 C.F.R. § 12!2.7(d). Based on the facts of the respondent's crime of assault with a deadly weapon, we disagree (l.J. at 5-9, 15-16; Tr. at 39-44, 49-53, 67; Exhs. 2 and 3; Exh. 7, Tab I at 70-73, 77, 79). See Matter of Jean, 23 l&N Dec. 373, 383-84 (A.G. 2002) (using a fact-based approach to determine if a crime was "violent or dangerous").

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As the respondent has been convicted of a "violent or dangerous" crime, he must demonstrate that his removal would result in exceptional and extremely unusual hardship. 8 C.F.R. § 1212.7(d). We affirm the finding that the respondent has shown that his removal would result in exceptional and extreme! y unusual hardship to his wife who has diabetes, blindness, and end stage renal disease that requires dialysis three times per week, as well as his son who has cognitive disabilities and hearing loss (I.J. at 17-18; Tr. at 38, 60, 76, 80-82; Exh. 7, Tabs F-G). See generally Matter of Recinas, 23 I&N Dec. 467 (BIA 2002); Matter of Andazola, 23 I&N Dec. 319 (BIA 2002); Matter of Monreal, 23 I&N Dec. 56 (BIA 2001).

The respondent contends that the Immigration Judge erroneously determined that notwithstanding this showing, he did not satisfy his burden of establishing that he merits a favorable exercise of discretion (I.J. at 19-21). Applying our de novo review, we conclude that the negative factor of the respondent's crime is very serious. However, the respondent was immediately remorseful, called the police and an ambulance, waited for the police, and admitted what he had done (l.J. at 5-6; Tr. at 43-45; Exh. 2 at 8). The respondent also has no additional criminal record and the victim has apparently forgiven him (I.J. at 6; Exh. 7, Tab I at 76). Furthermore, the respondent has established significant positive equities in addition to the aforementioned showing of hardship, including long residence in the United States, consistent employment and support of his family members, and numerous letters of support attesting to his good character (l.J. at 20; Tr. at 34, 37-39, 46-47, 78-82; Exh. 7, Tabs C-D and H). He also has continued to express remorse, has attended church services and Bible study while incarcerated, and intends to seek anger management treatment upon release (I.J. at 21; Tr. at 45, 48-49). Weighing the respondent's positive equities against the negative factor of his crime, we hold that the respondent has narrowly established that a positive exercise of discretion is warranted. See Matter of Mendez, 21 I&N Dec. 296, 300 (BIA 1996) (providing that the discretionary analysis set forth in Matter of Marin, 16 I&N Dec. 581 (BIA 1978), is an appropriate general guide in section 212(h) cases). It is undisputed that the respondent is otherwise eligible for adjustment of status (I.J. at 13-14). See section 245(a) of the Act.

Accordingly, the following orders are entered.

ORDER: The appeal is sustained, and the respondent is found eligible for and deserving of a section 212(h) waiver and adjustment of status.

FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the Department of Homeland Security the opportunity to complete or update identity, Jaw enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. § 1003.47(h).

2

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' U.S. Department of Justice Executive Office for Immigration Review



In re:


APPEAL


CHARGE:


Date: JA.N - 8 ZG15

Notice: Sec. 212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. § 1182(a)(7)(A)(i)(I)] -Immigrant - no valid immigrant visa or entry document

APPLICATION: Asylum; withholding of removal; Convention Against Tortnre

The respondent, a native and citizen of Somalia, has appealed the Immigration Judge's decision dated July 20, 2015, which denied her applications for asylum pursuant to section 208(b)(l)(A) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § l 158(b)(l)(A), withholding of removal pursuant to section 24l(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A), and protection under the Convention Against Torture ("CAT") pursuant to 8 C.F .R. §§ 1208.16-1208.18. The Department of Homeland Security ("DHS") did not file a response to the appeal. The appeal will be sustained in part, and the record will be remanded for further proceedings.

We review the findings of fact, including the determination of credibility, made by the Immigration Judge under a "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including issues of law, judgment or discretion, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii). The respondent's applications for relief from removal are governed by the amendments to the REAL ID Act. See Matter ofS-B-, 24 l&N Dec. 42 (BIA 2006).

Due to our limited fact-finding ability on appeal, we find it necessary to remand the record for further fact finding, analysis, and consideration of the respondent's credibility and the merits of her claim for relief from removal. See generally Matter of S-H-, 23 l&N Dec. 462, 465 (BIA 2002) (because of the Board's limited fact-finding ability on appeal, there is a heightened need for Immigration Judges to include in their decisions clear and complete findings of fact that are supported by the record and are in compliance with controlling law). The Immigration Judge clearly erred when she found the respondent's testimony that "a man stood on top of her" to be inconsistent with her written statement that she was raped by multiple men associated with the terrorist group Al-Shabaab, as the transcript reflects that the respondent, in fact, testified to having had her legs held down by more than one person and that "the men stood on top of me" (l.J. at 7-8; Tr. at 57) (emphasis added).

Moreover, while the Immigration Judge identified inconsistencies in the respondent's testimony, asylum application, and asylum interview regarding what, if anything, she was able to

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recall about the rape (for instance what was said to her, what the men did and what she did), the Immigration Judge did not indicate that she considered the explanations provided by the respondent when confronted with the perceived discrepancies, as required by case law (I.J. at 7-8). See Ren v. Holder, 648 F.3d 1079, 1092 n.14 (9th Cir. 2011) (noting that the Immigration Judge must give the applicant an opportunity to explain any perceived inconsistencies); Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010) (stating that the "totality of the circumstances" standard under the REAL ID Act includes consideration of the applicant's explanation for a perceived inconsistency). The Immigration Judge also did not indicate that she considered the respondent's explanation for why she did not mention her alleged subjection to female genital mutilation ("FGM") in her prior statements to the asylum officer and her asylum application (I.J. at 6, 8; Tr. at 94). See Shrestha v. Holder, supra. Likewise, the respondent was not accorded the opportunity to provide an explanation for what the Immigration Judge perceived as an inconsistency between her and her witness's testimony regarding whether or not there would still be stitches from a circumcision performed several years earlier, as the respondent had testified that she was subjected to FGM in 2009 but that the "stitching came off" when she was raped in 2014 (l.J. at 5, 8; see Tr. at 78-79, 85, 122).

While the Immigration Judge found inconsistent the respondent's medical evaluation which stated that the respondent's genitalia were intact, the Immigration Judge did not indicate what weight she accorded the testimony of the respondent's witness regarding how the evaluation may still be consistent with one who underwent FGM, specifically a Type I sunna circumcision (1.J. at 4-5). See id. at 1040-41 (noting that the "totality of the circumstances" standard of the REAL ID Act does not permit the Immigration Judge to ignore evidence that corroborates the respondent's claim). Further, with regard to the Immigration Judge's finding that Al-Shabaab was not shown to be an entity that the Somalian government was unable or unwilling to control, it is not evident from the Immigration Judge's decision that she considered the background country evidence in the record regarding the group's presence and influence in Somalia (l.J. at 9; see Exh. 3). Likewise, the Immigration Judge should consider the respondent's testimony that one of the reasons she did not report Al-Shabaab's actions to the police was that nothing could be done (Tr. at 74-75), and should assess whether the background evidence supports that claim of ineffectiveness. See, e.g., Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006) (applicant need not have reported persecution by private parties to authorities "if he can convincingly establish that doing so would have been futile or have subjected him to further abuse.").

In view of the foregoing, reconsideration of the respondent's credibility and eligibility for relief from removal is appropriate, and the record will be remanded to the Immigration Judge for this purpose. On remand, the Immigration Judge should also address, inter alia, whether the record evidence that shows the prevalence of FGM in Somalia, and the respondent's argtunents on appeal regarding the small size of her genitalia, corroborate and support the respondent's claim that she was subjected to FGM. The Immigration Judge should likewise address the respondent's arguments on appeal regarding her witness's qualification as an expert in the context of identifying whether an individual has undergone FGM. Both parties should be accorded an opportunity to submit additional and updated testimonial and documentary evidence in the remanded proceedings. In remanding this case, we intimate no opinion regarding the respondent's ultimate eligibility for relief from removal.

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The respondent asserts on appeal that the Immigration Judge assumed a hostile, sarcastic "snide and disrespectful tone" throughout her proceedings that was indicative of bias and prejudice (Respondent's Br. at 17-20). Although the lrnmigration Judge at times may have exhibited brusque impatience toward counsel and the respondent, the Immigration Judge allowed the parties to complete the direct, cross, and redirect examinations of the respondent and her witness, and there is no indication that the respondent was prevented from fully presenting her claim or that the Immigration Judge based her decision on anything other than an assessment of the claim's merit. See generally Matter of Exame, 18 I&N Dec. 303 (BIA 1982); see also Liteky v. United States, 510 U.S. 540, 555-56 (1994) (holding that charges of judicial bias and partiality cannot be established solely by "expressions of impatience, dissatisfaction, annoyance, and even anger"). Under the totality of the circumstances presented in this case, we do not find there to be an adequate showing of partiality, bias, or deprivation of due process, such as would justify remanding this case to another Immigration Judge as requested on appeal. In view of the foregoing, the following order shall be entered.

ORDER: The appeal is sustained in part, and the record is remanded to the Immigration Court for further proceedings and entry of a new decision consistent with the foregoing opinion

... ~.=~4~J.6l;r~ ' F Tiffi BOARD

3

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U.S. Department of Justice Execu\ive Office for Immigration Review


Files: Miami, FTorida


Date:

In re:


APPEAL

ON BEHALF OF APPLICANTS:

APPLICATION: Withholding of removal

The respondents have appealed from the Immigration Judge's decision dated August 4, 2015. The Immigration Judge denied the respondent's applications for relief.

The Board of Immigration Appeals has limited fact-finding ability on appeal, which heightens the need for Immigration Judges to include in their decisions clear and complete findings of fact that are supported by the record and are in compliance with controlling law. Matter c!f'S-H-, 23 I&N Dec. 462 (BIA 2002). The Immigration Judge's decision has an almost complete lack of factual findings. (l.J. Dec. at pp. 3-4) Accordingly, this matter will be remanded and on remand the hnmigration Judge shall enter a new decision with comprehensive findings of fact. Id. (citing Afatter of Rodriguez-Carrillo. 22 I&N Dec. I 031 (BIA 1999) (discussing the importance of a full and separate decision by an Immigration Judge)). Accordingly, the following order will be entered.

ORDER: The record is remanded to the hnrnigration Court for further proceedings.

FORTEBOARD

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U.S. Department of Justice Execu\ive Office for Immigration Review


Files: - Miami, FTorida


Date:

In re:


APPEAL

ON BEHALF OF APPLICANTS:

APPLICATION: Withholding of removal

The respondents have appealed from the Immigration Judge's decision dated August 4, 2015. The Immigration Judge denied the respondent's applications for relief.

The Board of Immigration Appeals has limited fact-finding ability on appeal, which heightens the need for Immigration Judges to include in their decisions clear and complete findings of fact that are supported by the record and are in compliance with controlling law. Matter c!f'S-H-, 23 I&N Dec. 462 (BIA 2002). The Immigration Judge's decision has an almost complete lack of factual findings. (l.J. Dec. at pp. 3-4) Accordingly, this matter will be remanded and on remand the hnmigration Judge shall enter a new decision with comprehensive findings of fact. Id. (citing Afatter of Rodriguez-Carrillo. 22 I&N Dec. I 031 (BIA 1999) (discussing the importance of a full and separate decision by an Immigration Judge)). Accordingly, the following order will be entered.

ORDER: The record is remanded to the hnrnigration Court for further proceedings.

FORTEBOARD

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. U.S. Department of Justice Execupve Office for Immigration Review

Dec"1on of the Board of Immigration Appeals

·falls Church, Virginia 22041

File: - York, PA Date:

In re:


APPEAL


ON BEHALF OF THE OHS:

CHARGE:

Jeffrey T. Bubier Senior Attorney

JAN 1 I 2arn

Notice: Sec. 212(a)(7)(A)(i)(I), l&N Act (8U.S.C.§l182(a)(7)(A)(i)(l)) -Immigrant - no valid immigrant visa or entry document

APPLICATION: asylum; withholding of removal; Convention Against Torture

The respondent, a native and citizen of Kenya.. appeals from the Immigration Judge's July 24, 2015, decision denying her application for asylum and withholding of removal pursuant to sections 208(a) and 24l(b)(3) of the Immigration and Nationality Act. 8 U.S.C. §§ 1158(a) and 123l(b)(3), and protection pursuant to the Convention Against Torture (CAT). The appeal will be sustained in part and the record will be remanded for further proceedings.

We review the findings of fact. including determinations as to credibility and the likelihood of future events, made by the Irnrnigration Judge under a "clearly erroneous" standard. See Malter of S-H-, 23 I&N Dec. 462 (BIA 2002); 8 C.F.R. § 1003. l(d)(3)(i); see also Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015). We review all other issues, including issues of law, judgment, or discretion, under a de novo standard. 8 C.F.R. § 1003. l(d)(3)(ii). Because the asylum application was filed after May 11. 2005, it is governed by the provisions of the REAL ID Act of2005. See Matter ofS-B-, 24 l&N Dec. 42 (BIA 2006).

On appeal, the respondent challenges the Immigration Judge's adverse credibility finding. Further, the respondent argues that the Immigration Judge erred by conducting independent research on the internet and relying on the information he obtained to make an adverse credibility finding. Also, the respondent maintains that the lmmipation Judge erred in failing to consider evidence in the record that had been properly submitted.

1 The respondent avers on the second page of her appeal brief that the Immigration Judge erred in failing to terminate removal proceedings when the Notice to Appear (NT A) improperly

(continued ... )

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' We conclude that the Immigration Judge's adverse credibility finding is clearly erroneous.

Considering "the totality of the circwnstances" under section 208(b)(l)(B)(iii) of the Act, 8 U.S.C. § I 158(b)(l)(B)(iii), the reasons stated by the Immigration Judge for finding the respondent incredible are not sufficient to support an adverse credibility finding (l.J. at 4-7). The Immigration Judge's adverse credibility finding was predicated in large part on conjecture. Specifically, the Immigration Judge did not find it credible that the respondent would have returned to her village to attend her ceremonial wedding after she had spent nwnerous years away from her village attending school and working to escape the threat of a forced marriage and female circumcision (l.J. at 4-7). Also, the Immigration Judge did not find it believable that the respondent would have ventured to her village market by herself to shop when she had been the target of recent threats by her family, elders, and villagers (l.J. at 5; Tr. at 115-16). We find these purported implausibilities to be speculative and, therefore, insufficient to render the respondent's overall testimony incredible. Accordingly, we will reverse the Immigration Judge's adverse credibility finding. Further, we conclude that the Immigration Judge's stated reasons for finding the respondent's corroborating evidence insufficient are also inadequately supported by the record. for essentially the reasons set forth in the respondent appellate brief.

In light of our reversal of the Immigration Judge's adverse credibility determination, we find that a remand is warranted in order for the Immigration Judge to conduct additional fact finding, consider all evidence of record and issue a new decision. The respondent testified that she resided for several years outside of her village attending school and working to avoid female genital mutilation and demands made by some of her relatives, elders of her former church, and village elders to marry an elder priest from the church (Tr. at 25-29, 31-36, 39-41, 44, 48-41, 51-52, 56-57). The respondent argues on appeal that she has a well-founded fear of future persecution in Kenya "as a woman who has refused a forced marriage, refused to undergo female genital mutilation, and a member of a family who no longer wishes to remain in the

sect." On remand, the Immigration Judge will address the merits of the respondent's asylum claim and whether the respondent established past persecution or a well-founded fear of future persecution in Kenya based on a protected ground. Also. the Immigration Judge should consider whether the respondent can relocate within Kenya and whether under all the circumstances it would be reasonable to expect her to do so. See Leia v Ashcroft, 393 F.3d 427 (3d Cir. 2005); Matter of M-Z-M-R-, 26 l&N Dec. 28 (BIA 2012). The parties should be allowed to provide further evidence, including additional testimony, regarding the respondent's eligibility for asylwn. In addition, the Immigration Judge should afford the parties an opportunity to submit updated evidence of country conditions.


( ... continued) classified her as an arriving alien. Other than mentioning this in passing in the introductory section of her appeal brief, the respondent did not provide any additional argument or support for her assertion. We did not find the respondent" s unsupported assertion sufficient to warrant termination.

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, ORDER: The appeal is sustained in part. and the Immigration Judge's adverse credibility

finding is reversed.


FOR THE BOARD """'

3

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File: - Elizabeth, NJ

In re:


APPEAL


Date:


CHARGE:



In a decision dated July 30, 2015, an Immigration Judge denied the respondent's applications for asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158, withholding ofremoval under section 24l(b)(3) of the Act, 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture, and ordered him removed to Bangladesh. The respondent appealed from the denial ofrelief. The record will be remanded.

We review the Immigration Judge's factual findings for clear error and all other issues de novo. See 8 C.F.R. § !003.l(d)(3)(i); see also Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015). The respondent's application for asylum was filed in 2014, and, therefore, the amendment to the act made by the REAL ID Act of2005 apply to this case.

The respondent is a year-old native and citizen of Bangladesh. He testified that he became a member of the Bangladesh Nationalist Party's student wing, Chhatra Dal (Tr. at 41, 42). He testified that after attending a BNP meeting on 2014, Awarni League members slapped and punched him (I.J. at 2; Tr. at 20-26). On 2014, after a BNP rally, Awarni League members beat the respondent, and he went to a local medical dispensary where a doctor cleaned his wounds and the respondent was given painkillers (I.J. at 2, 3; Tr. at 26-29). The respondent testified that he planned and attended a BNP rally on , 2014, where bricks were thrown at his leg, causing injury, though he did not seek medical treatment (I.J. at 3; Tr. at 30-32). On , 2014, while campaigning for a BNP candidate, Awarni League members beat him with a pistol, causing him to become unconscious, and he was hospitalized overnight (I.J. at 3; Tr. at 32-37). The respondent testified that on 2014, he went to live with his uncle in where he stayed until leaving Bangladesh on

2014. Although the respondent was not assaulted while living in he testified that Awarni League members threatened him over his cell phone (I.J. at 3, 4; Tr. at 37, 38, 66, 67).

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The Immigration Judge determined that the respondent failed to meet his burden of establishing that he was persecuted in the past, that he faces a well-founded fear of persecution for asylum or a clear probability of persecution for withholding of removal, or that he established eligibility for protection under the Convention Against Torture (l.J. at 4-12). The Immigration Judge found that the physical attacks against the respondent did not result in serious injury and did not rise to the level of persecution (1.J. at 4-6). The Immigration Judge found that all of the incidents in the aggregate did not rise to the level of persecution, that the respondent did not establish that, upon return to Bangladesh, the Awami League would target him, a low level member, and that he did not establish an objectively reasonable fear of future persecution (I.J. at 6-9).

The United States Court of Appeals for the Third Circuit, the circuit in which this case arises, has held that persecution denotes "extreme conduct"). Fatin v. INS, 12 F.3d 1233, 1240 n. 10 (3d Cir. 1993). The Third Circuit has also held that isolated incidents that do not result in serious injury do not rise to the level of persecution. Chen v. Ashcroft, 381 F.3d 221, 234-35 (3d Cir. 2004) (the Board reasonably found that the respondent's alleged beating did not appear to have been serious). The Immigration Judge incorrectly found the incidents recounted by the respondent did not rise to the level of persecution. The respondent was beaten on four separate occasions over a relatively short span of time, and he was threatened with death by a group, one of whose members possessed a gun, and again by phone after he moved. Cumulatively, these incidents rose to the level of persecution. See Chavarria v. Gonzales, 446 F.3d 508 (3d Cir. 2006) (threat rises to level of past persecution because it was highly imminent, concrete and menacing). Also, although the Immigration Judge questioned whether the Awami League members knew of the respondent's level of involvement in the BNP, the respondent testified that each of the four attacks occurred immediately after his involvement in a BNP event.

Once past persecution is established, a presumption arises that the respondent has a wellfounded fear of future persecution. See 8 C.F .R. § 1208.13. The burden of proof then shifts to the Department of Homeland Security to rebut the presumption of a well-founded fear of persecution. 8 C.F.R. § 1208.l3(b)(l)(i)(A) or (B). The DHS shall bear the burden of establishing by a preponderance of the evidence that there has been a "fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution." 8 C.F.R. § 1208.13(b)(l)(i)(A). The DHS may also rebut the presumption of a well-founded fear of persecution by showing that the applicant for asylum could avoid future persecution by internal relocation to another part of the country where he or she does not fear persecution, and if, "under all the circumstances, it would be reasonable to expect the applicant to do so." 8 C.F.R. § 1208.13(b)(l)(i)(B). See also Matter o/C-A-L-, 21 I&N Dec. 754 (BIA 1997); Matter of H-, 21 I&N Dec. 337, 346 (BIA 1996).

Having established past persecution, the respondent is presumed to have a well-founded fear of future persecution. Because the Immigration Judge found that the respondent had not established past persecution, DHS did not have an opportunity to establish either that country conditions in Bangladesh have fundamentally changed or that the respondent could reasonably avoid a likelihood of future persecution by relocating to another part of Bangladesh. Thus, we find it appropriate to remand the record to allow the DHS an opportunity to satisfy its burden. Based upon the foregoing, the following order will be entered.

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ORDER: The record is remanded to the Immigration Judge for further proceedings and for entry of a new decision.

FORTHEBOARD '

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File: - Elizabeth, NJ Date:

In re:


APPEAL


ON BEHALF OF DHS: Christopher W. Antoni Assistant Chief Counsel

APPLICATION: Cancellation ofremoval

JAN 1 4 2016

The respondent appeals from the Immigration Judge's July 23, 2015, decision denying his application for cancellation of removal for nonpermanent residents under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b). The record will be remanded for further proceedings and the entry of a new decision.

The Immigration Judge denied the respondent's application for cancellation of removal upon determining that he did not establish that his removal from the United States would result in exceptional and extremely unusual hardship to his two United States citizen children, who were ages 8 and 12 at the time of the hearing. The respondent challenges this determination on appeal. 1 Upon consideration of the entire record, and in an abundance of caution, we deem it appropriate to remand the record for both parties to have the opportunity to update the evidentiary record, including any evidence relating to the status of the respondent's children. On remand, the parties should have the opportunity to present arguments to support their positions. The Immigration Judge should then issue a new decision evaluating the matter of exceptional and extremely unusual hardship upon consideration of the totality of the evidence in the record, and addressing any other issues appropriate and necessary for the resolution of the respondent's claim. Our decision to remand should not be construed as indicating any position as to the ultimate resolution of the respondent's case. Accordingly, the following order will be entered.

ORDER: The record is remanded for further proceedings and the entry of a new decision consistent with the foregoing order.

~ 1 The Department of Homeland Security did not appeal the Immigration Judge's determinations that the respondent demonstrated the requisite continuous physical presence in the United States, good moral character, and that he has not been convicted of a disqualifying offense.

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U.S. Departme~t of Justice Executive Office for Immigration Review

Fails Church, Virginia 22041


In re:


APPEAL AND MOTION


Date: DEC 3 1 2015


CHARGE:

Notice: Sec. 212(a)(7)(A)(i)(n, I&N Act [8 U.S.C. § 1182(a)(7)(A)(i)(I)] -Immigrant - no valid immigrant visa or entry document (conceded)


The respondent, a native and citizen of China, has appealed from the Immigration Judge's July 28, 2015, decision to deny her application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT''). Sections 208(b)(l)(A) and 241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(b)(l)(A), 1231(b)(3)(A); 8 C.F.R. §§ 1208.16(c), 1208.18. The respondent has also submitted additional evidence on appeal, which we construe as a motion to remand. See Matter ofL-A-C-, 26 l&N Dec. 516, 526 (BIA 2015). The Department of Homeland Security ("DHS") has not filed its opposition to the appeal or the motion to remand. The respondent's fee waiver is granted. See 8 C.F.R. § 1003.8(a)(3). The appeal will be sustained and the record will be remanded for further proceedings. The motion to remand will be denied as moot.

We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including issues of Jaw, judgment, and discretion. 8 C.F.R. § 1003.l(d)(3)(ii). Because the respondent filed her application for relief from removal after May 11, 2005, it is subject to the relevant provisions of the REAL ID Act of 2005. Matter of A-R-C-G-, 26 I&N Dec. 388, 389 n.8 (BIA 2014).

The respondent was arrested in early 2015 for participating in Falun Gong exercises with others (l.J. at 4-5; Exh. 2; Tr. at 16, 29-47). Following her arrest, the respondent was detained for 24 hours, interrogated, and beaten (1.J. at 4-5; Exh. 2; Tr. at 16, 29-4 7). As a consequence of the beating, the respondent sustained a bloody nose, several bruises on her body, and an abrasion on her hand (l.J. at 5; Exh. 2; Tr. at 37-38). The respondent informed the authorities that she would never practice Falun Gong again if they released her (l.J. at 5; Exh. 2; Tr. at 38, 41). The authorities agreed to release the respondent if she signed a document stating that she would never practice Falun Gong again and that she would report to the authorities every week (I.J. at 5; Exh. 2; Tr. at 38-40). The respondent consented and was released after her husband paid a fine (l.J. at 5; Exh. 2; Tr. at 39, 46-47). The respondent received an initial treatment for her injuries at a clinic the following day, she returned to the clinic to have a bandage changed that same

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evening (I.J. at 5; Exh. 2; Tr. at 41-43). Thereafter, she did not require any further medical treatment for her injuries (l.J. at 5; Exh. 2; Tr. at 41-43). The respondent did not practice Falun Gong in China following her release and reported to the police as required until she fled to the United States (l.J. at 5; Exh. 2; Tr. at 43-44). The respondent fears returning to China because she believes she will be beaten to death for violating the tenns of her release (1.J. at 5; Exh. 2; Tr. at 44-45).

On appeal, the respondent argues that the Immigration Judge erred in denying her application for asylum based on an adverse credibility determination (Respondent's Brief at 11-19). The respondent also contests the Immigration Judge's conclusion that she has not met her burden of establishing that she suffered past persecution in China on account of her religion or that she has a well-founded fear of future persecution based on this same protected ground (Respondent's Brief at 20-22).1

We will reverse the Immigration Judge's adverse credibility finding because it is clearly erroneous (I.J. at 9-11). "[A] finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Matter of R-S-H, 23 I&N Dec. 629, 637 (BIA 2003) (citation and internal quotation marks omitted). There are two clear errors in the hnmigration Judge's adverse credibility determination (l.J. at 9-11; Tr. at 21-62, 65-67). First, the hnmigration Judge based his adverse credibility determination on inconsistencies between the respondent's declaration and her testimony, but he never solicited explanations for these inconsistencies from the respondent during proceedings (l.J. at 9-10; see Tr. at 21-62, 65-67). See Ai Jun Zhi v. Holder, 751F.3d1088, 1093 (9th Cir. 2014) (reversing an Immigration Judge's adverse credibility determination which was based on inconsistencies between testimony and record evidence because the Immigration Judge never solicited an explanation for these inconsistencies from the alien (citing Soto-Olarte v. Holder, 555 F.3d 1089, 1092 (9th Cir. 2009) (holding that an Immigration cannot base an adverse credibility detennination on a discrepancy without first asking the applicant about it and giving him an opportunity to explain)). As a consequence, the Immigration Judge's findings that these inconsistencies undermine the respondent's credibility are clearly erroneous and cannot support an adverse credibility determination (I.J. at 9-10). See id.; see also Matter of R-S-H-, supra.

Second, the hnmigration Judge improperly based his adverse credibility finding on the fact that the respondent previously attempted to enter the United States as a nonimmigrant visitor in

1 The respondent's appellate assertion that her custody with the DHS during proceedings prejudiced her ability to fully participate in proceedings is not properly before us (Respondent's Briefat 13). See 8 C.F.R. § 1003.19(d) (providing that consideration of an alien's application or request for custody or bond shall be separate and apart from, and shall form no part of, any removal proceeding).

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2011 and 2014 and that she was prevented from doing so because both visa applications were denied (I.J. at 10-11; Tr. at 49-51). Based on these facts, the Immigration Judge concluded that the respondent had an independent motive to enter the United States, she did not genuinely fear being returned to China, and due to this independent motive-rather than her fear of return-she hired a snakehead to smuggle her into the United States (I.J. at 11). However, because the Immigration Judge points to no other record evidence in support of this finding, it is speculative and cannot support an adverse credibility determination (I.J. at 11). See, e.g., Tijani v. Holder, 628 F.3d 1071, 1089 (9th Cir. 2010) (noting that when an Immigration Judge finds an alien's "testimony implausible based solely on 'conjecture and speculation' that the testimony, though uncontroverted by any evidence that the [Immigration Judge] can point to in the record, is inherently unbelievable, then that 'finding"' cannot support an adverse credibility determination); Paramammy v. Ashcroft, 295 F.3d 1047, 1052-53 (9th Cir. 2002) (holding that an Immigration Judge's hypothesis as to what motivated the applicant's departure from Sri Lanka was speculative and could not support an adverse credibility finding).

Finally, the Immigration Judge based his adverse credibility determination on the respondent's lack of responsiveness during her testimony (LJ. at 10; Tr. at 20-22). There is no clear error in the Immigration Judge's finding that the respondent did not respond fully to a few of her attorney's questions (I.J. at 10; Tr. at 20-22). However, the record reflects that the respondent was responsive to all questions asked of her after the Immigration Judge reminded her to listen to each question carefully and respond appropriately (Tr. at 23-62). There is no indication that the Immigration Judge made a second finding, on the record, as to the respondent's unresponsiveness after he provided this reminder (see Tr. at 23-62). Thus, under the totality of the circumstances, this instance of unresponsiveness does not support an adverse credibility determination in this case (I.J. at 10; Tr. at 20-62). See Ai Jun Zhi v. Holder, supra, at 1091 ("Although an [Immigration Judge] may base her adverse credibility detern1ination on 'any ... relevant factor,' she must do so in light of 'the totality of the circumstances."' (quoting section 208(b )(I )(B)(iii) of the Act)). As a consequence, we will reverse the Immigration Judge's adverse credibility determination because it is clearly erroneous (I.J. at 9-11). See A.fatter ofR-S-H-, supra.

With regard to the merits of the respondent's application for asylum under section 208(b) of the Act, we agree with the Immigration Judge that the respondent has not shm\·11 that she has suffered past persecution in China (I.J. at 4-5, 12-13; Exh. 2; Tr. at 16, 29-47). The Immigration Judge found that: police in China detained the respondent for approximately 24 hours; the police interrogated the respondent and beat her during her detention; no weapons were used during the beating; as a result of the beating, the respondent sustained a bloody nose, bruises, and an abrasion on her hand; t11e respondent was not hospitalized following her release from detention; she received only minimal medical treatment for her injuries; and none of her injuries was lasting (I.J. at 4-5, 12-13; Exh. 2; Tr. at 16, 29-47). These findings are not clearly erroneous (I.J. at 4-5, 12-13; Exh. 2; Tr. at 16, 29-4 7). Based on these findings, in which we find no clear error, we agree with the Immigration Judge that the respondent's arrest, detention, beating, and interrogation did not result in harm rising to the level of past persecution in China (LJ. at 12-13).

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See Gu v. Gonzales, 454 F.3d 1014, 1019-21 (9th Cir. 2006) (finding that detention for 3 days, being hit on the back with a metal rod 10 times, and being interrogated for 2 hours did not rise to the level of past persecution by Chinese police on account of unsanctioned religious practice); Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir. 1995) (minor abuse of Indo-Fijian during 4-6 hour detention did not result in harm rising to the level of past persecution). The respondent is therefore not entitled to a presumption of future persecution for purposes of section 208(b) of the Act. See 8 C.F.R. § 1208.13(b)(l)(ii).

The Immigration Judge's findings regarding whether the respondent has established that she has a well-founded fear of future persecution in China are incomplete and overlook evidence (I.J. at 13). The Immigration Judge found that the respondent did not have a well-founded fear of future persecution in China based on her practice of Falun Gong because: she had no other problems with the authorities following her release from detention; she discontinued her practice of Falun Gong after her arrest; and the respondent was able to depart from China without being stopped by the authorities (I.J. at 13). It is unclear from the record whether the respondent, in fact, stopped practicing Falun Gong in China after she was released from detention-the respondent inconsistently testified on this point and the Immigration Judge made no findings of fact as to this inconsistency (1.J. at 13; compare Tr. at 44, with Tr. at 62). Where there are two pennissible views of the evidence, an Immigration Judge's choice between them cannot be deemed clearly erroneous. See Matter of D-R-, 25 l&N Dec. 445, 455 (BIA 2011) (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985)). As a result, we conclude that that there is no clear error in the Immigration Judge's finding that the respondent discontinued her practice of Falun Gong while living in China (I.J. at 13; Tr. at 44, 62). See id.

Nevertheless, the Immigration Judge overlooked the respondent's testimony that she continues to practice Falun Gong daily in the United States (Respondent's Brief at 11; Tr. at 45). In addressing the respondent's application for protection under the CAT, the Inunigration Judge noted that country conditions reports reflect that some practitioners of Falun Gong have been imprisoned and tortured by the Chinese government (l.J. at 13; Exh. 3 at 33-37). However, the Immigration Judge distinguished these reports, observing that there was no indication that any of these individuals were "those who have initially experimented with Falun Gong," and thus the respondent had not established that individuals similarly situated to her are indeed harmed in China (l.J. at 13; Exh. 3 at 33-37). Given our limited fact-finding ability on appeal, we will remand the record to the Immigration Judge to make findings of fact in the first instance regarding the respondent's testimony that she continues to practice Falun Gong (Respondent's Brief at 11; Tr. at 45). See, e.g., Matter o/S-H-, 23 I&N Dec. 462, 464-66 (BIA 2002).

On remand, the Immigration Judge should address the effect of this testimony, if any, on his determination that the respondent has not shown a well-founded fear of future persecution in China on account of her religion for purposes of asylum under section 208(a) of the Act (see Exh. 3 at 33-37; Tr. at 45). See 8 C.F.R. § 1208.13(b)(2). The Immigration Judge should also reconsider his denial of withholding of removal and protection under the CAT in light of this evidence (I.J. at 15). See 8 C.F.R. § 1208.16(b)(2), (c)(3). Because we are remanding the record

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for further proceedings, the respondent's motion to remand will be denied as moot. Accordingly, the following orders will be entered.

ORDER: The respondent's appeal is sustained and the record is remanded for further proceedings and the entry of a new decision consistent with the foregoing opinion.

FURTHER ORDER: The respondent's motion to remand is denied as moot.

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File: - West Valley, UT Date: r '· rJ 1 c ?r.15 .; r-.. . ,._, t..'V •

In re:


APPEAL AND MOTION


ON BEHALF OF DHS: Jonathan Stowers Assistant Chief Counsel

APPLICATION: Remand

ORDER:

The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's August 4, 2015, decision denying his motion for a continuance and application for preconclusion voluntary departure. However, during the pendency of his appeal, the respondent filed a motion to remand seeking the opportunity to pursue an application for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § l25S(i), based on an approved Immediate Relative visa petition that was filed on his behalf by his United States citizen spouse. Considering the evidence presented, including the Department of Homeland Security's non opposition to the pending motion, the respondent's motion is granted and the record will be remanded to the Immigration Judge for further proceedings on the respondent's application for adjustment of status. In remanding this matter, we express no opinion regarding the outcome of the respondent's application for relief.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings not inconsistent with this order.

FOR THE BOARD

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File: - Lake Butler, FL

In re:


APPEAL


ON BEHALF OF DHS: Steven R. Parrish Assistant Chief Counsel

APPLICATION: Convention Against Torture


Date: JAN 1 1 2fi15

The respondent, a native and citizen of Suriname, appeals the Immigration Judge's August 4, 2015, decision that found the respondent had abandoned his application for deferral of removal under the Convention Against Torture ("CAT"), See 8 CF.R. §§ 1208.17, 1208.18. On appeal, the Department of Homeland Security ("DHS") moves that the record be remanded for further consideration by the Immigration Judge. The respondent opposes the DHS's motion. The record will be remanded.

The Immigration Judge concluded that the respondent had not submitted an application for protection under the CAT by the prescribed July 31, 2015, deadline (l.J. at 1). The DHS concedes on appeal that this application had been timely submitted by the respondent and requests that the case be remanded to the Immigration Judge (DHS Motion (10/13/15) at 2). The respondent is currently incarcerated by the Florida state penal system and a copy of his CAT application had not been forwarded to the Immigration Court (DHS Motion at 2). Under these circumstances, we find it appropriate to remand the record so that Immigration Judge can consider the CAT application in the first instance. See 8 C.F.R. § 1003.1 (d)(3)(iv).

The respondent contends that the record should not be remanded to the Immigration Judge as she did not address a number of constitutional issues raised by the respondent, and the respondent has filed a motion with the U. S. Court of Appeals for the Eleventh Circuit to collaterally attack prior decisions of the Immigration Court that he believes violated his constitutional rights of due process. See generally Motion in Opposition of Appellee's Motion to Remand to Immigration Judge ("Resp. Motion") ( /15). The respondent also contends that the Immigration Judge acted in a biased and prejudicial manner in addressing his prior motions and oral argun1ents before the Immigration Court, and moves that his record not be remanded (Resp. Motion at 4-5; Resp. Br. at 5-15). The respondent has not identified a valid reason for not remanding the case. The Immigration Judge needs to adjudicate the application for CAT in the first instance.

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Based on the foregoing, we find that remand of the record for further consideration by the Immigration Judge is warranted. The Immigration Judge should afford the respondent the opportunity to present both legal and factual contentions regarding his termination of asylum and deferral of removal under the CAT, present evidence to support these contentions, and, as appropriate, fully address these contentions and the application for CAT in an oral or written decision (Tr. at 56-57, 95). See generally Respondent's Brief on Appeal (10/20/15). In remanding the record, we express no opinion as to the ultimate outcome of this matter. Accordingly, the following order will be entered.


tSfOR THE BOARD

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U.S. Dep.~:'tmoot of Justice Executive Office for Immigration Review


Files: - Reno. NV

In re:


APPEAL


Date: DEC 3 1 2015



The respondents, 1 natives and citizens of El Salvador, who was ordered removed from the United States on June 18, 2015, appeals the decision of the Immigration Judge. dated August 19 2015, denying their motion to reopen, which was timely filed on July 8, 2015.

We review Immigration Judges' findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de nova. 8 C.F.R. § 1003. l(d)(3).

We have considered the totality of the circumstances presented in this case, and find that an exceptional situation bas been demonstrated warranting reopening to allow the respondents another opportunity to apply for relief from removal. See 8 C.F.R. § 1003.23(b)(l); Matter ofJ-J-, 21 l&N Dec. 976 (BIA 1997); Matter of Lozada, 19 l&N Dec. 637 (BIA 1988); see generally Matter of E-F-H-L-, 26 l&N Dec. 319 (BIA 2014) (holding that an applicant for asylum or for withholding or deferral of removal is entitled to a bearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief); see generally Matter of A-RC-G-, 26 I&N Dec. 388, 394-95 (BIA 2014) (holding that the issue of social distinction will depend on the facts and evidence in each individual case, including documented country conditions; law enforcement statistics and expert witnesses. if proffered, the respondent's past experiences; and other reliable and credible sources of information). At the present time, we express no opinion regarding the ultimate outcome of these proceedings.


1 The respondents in this case include the lead respondent and her minor son

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ORDER· The appeal is sustained, the proceedings are reopened, and the record is remanded to the Immigration Court for further proceedings

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U.S. Dep.~:'tmoot of Justice Executive Office for Immigration Review


Files: - Reno. NV

In re:


APPEAL


Date: DEC 3 1 2015



The respondents, 1 natives and citizens of El Salvador, who was ordered removed from the United States on June 18, 2015, appeals the decision of the Immigration Judge. dated August 19 2015, denying their motion to reopen, which was timely filed on July 8, 2015.

We review Immigration Judges' findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de nova. 8 C.F.R. § 1003. l(d)(3).

We have considered the totality of the circumstances presented in this case, and find that an exceptional situation bas been demonstrated warranting reopening to allow the respondents another opportunity to apply for relief from removal. See 8 C.F.R. § 1003.23(b)(l); Matter ofJ-J-, 21 l&N Dec. 976 (BIA 1997); Matter of Lozada, 19 l&N Dec. 637 (BIA 1988); see generally Matter of E-F-H-L-, 26 l&N Dec. 319 (BIA 2014) (holding that an applicant for asylum or for withholding or deferral of removal is entitled to a bearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief); see generally Matter of A-RC-G-, 26 I&N Dec. 388, 394-95 (BIA 2014) (holding that the issue of social distinction will depend on the facts and evidence in each individual case, including documented country conditions; law enforcement statistics and expert witnesses. if proffered, the respondent's past experiences; and other reliable and credible sources of information). At the present time, we express no opinion regarding the ultimate outcome of these proceedings.


1 The respondents in this case include the lead respondent and her minor son

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ORDER· The appeal is sustained, the proceedings are reopened, and the record is remanded to the Immigration Court for further proceedings

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File: - Honolulu, HI

In re:


APPEAL


Date:



lbis case is before the Board pursuant to a , 2015, order of the United States Court of Appeals for the Ninth Circuit, which granted the Government's motion to remand. In its motion, the Government sought remand because the Board had not considered the respondent's first proposed particular social group - owners of real property subject to extortion in El Salvador - regarding his eligibility for asylum and withholding of removal under sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3). As further fact-finding is needed to address this claim and any other issues, the record will be remanded. At the remanded hearing, both parties shall be provided \Vith an opportunity to present additional evidence, both testimonial and documentary.

Accordingly, the following order will be entered:

ORDER: The record is remanded to the Immigration Judge for further proceedings and the entry of a new decision.

FOR THE BOARD

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. ' U.S. Department of Justice Executive Office for Immigration Review


I •

Falls Ch1.1rch, Virginia 2204 I

File: - Lumpkin, GA Date:

In re:


APPEAL


ON BEHALF OF OHS: Kelly Johnson Assistant Chief Counsel·

CHARGE:

JAN 2 0 2016

Notice: Sec. 212(a)(2)(A)(i)(l), I&N Act [8 U.S.C. § 1182(a)(2)(A)(i)(I)] -Crime involving moral turpitude

Sec. 212(a)(6)(A)(i), l&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] -Present without being admitted or paroled

APPLICATION: Withholding ofremoval

The Department of Homeland Security ("OHS") appeals from the Immigration Judge's decision dated August 18, 2015, granting the respondent's application for withholding of removal under section 24l(b)(3)(A) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 123!lb)(3)(A). The respondent has filed a brief in opposition. The DHS's appeal will be sustained. The record will be remanded.

We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. § 1003.l(d)(3)(ii). The respondent's withholding of removal application was filed after May 11, 2005, and so the statutory amendments made by the REAL ID Act apply to this case (l.J. at 2; Exh. 4). Matter of S-B-, 24 I&N Dec. 42 (BIA 2006).

This matter was last before the Board on July 15, 2015, when we remanded the record for the Immigration Judge to issue a written decision. On remand, the Immigration Judge issued a written decision and granted the respondent withholding of removal without further testimony. The OHS has appealed from that decision.

On appeal, the OHS argues that the Immigration Judge erred in finding that the respondent was credible and was eligible for withholding of removal under the Act where she sua sponte cut-off the respondent's testimony during direct examination without permitting counsel for the OHS to cross-examine him (OHS Brief at 3-4, 6-7). In addition, the OHS contends that the

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Immigration Judge erred in considering humanitarian factors in her decision to grant the respondent -withholding of removal (Id at 4, 6-7).

We reverse the Immigration Judge's decision and remand for further proceedings. The Immigration Judge erred in ending the merits hearing while the respondent was still testifying on direct examination and prior to cross-examination. Although the respondent argues that the DHS waived its right to appeal this issue because the DHS attorney did not object to the Immigration Judge's actions at the hearing, it was the Immigration Judge's duty to fully develop the record. See section 240(b)(l) of the Act, 8 U.S.C. § 1229a(b)(l) (requiring Immigration Judges to "interrogate, examine, and cross-examine the alien and any witnesses"); Matter of E-F-H-L-, 26 I&N Dec. 319, 323-24 (BIA 2014). Moreover, the DHS did not consent to this procedure and indicated that it would appeal.

An Immigration Judge is to make a decision on an alien's application for withholding of removal after an evidentiary hearing to resolve factual issues in dispute. See 8 C.F .R. § 1240.l l(c)(3); Matter of E-F-H-L-, supra, at 321 ("[A]pplications for relief filed with the Immigration Court will be decided 'after an evidentiary hearing to resolve factual issues in dispute."'). As part of the evidentiary hearing, the DHS is entitled to call witnesses and present evidence for the record. 8 C.F.R. § 1240.l l(c)(3)(iv). Further, absent a full hearing, including an opportunity for cross-exanrination, an Immigration Judge's credibility determination cannot be properly based on the totality of the circumstances and all relevant factors. Xia v. United States Atty Gen., 608 F.3d 1233, 1239-40 (11th Cir. 2010).

Thus, on remand, the respondent should be afforded the opportunity to complete his testimony and present the testimony of any relevant witnesses. Section 240(b)(4)(B) of the Act. Further, the DHS should be granted to opportunity to cross-examination the respondent and any witnesses and to present any relevant evidence. 8 C.F.R. § 1240. l l(c)(3)(iv). The Immigration Judge may conduct further proceedings as necessary to reach a decision regarding the credibility of the respondent and any witnesses and to determine whether the respondent can meet the clear probability burden of proof for withholding of removal. Sections 240(b)(l) and 24l(b)(3) of the Act; 8 C.F.R. § 1208.16(b).

We note that section 24l(b)(3)(A) of the Act does not contain a discretionary component and does not permit an Immigration Judge to award withholding of removal for humanitarian reasons. See Matter of A-K-, 24 l&N Dec. 275, 279 (BIA 2007) (rejecting the Immigration Judge's alternative grant of withholding of removal to an alien based on humanitarian grounds due to the severity of the potential harm to his children). Based on the foregoing, the following orders will be entered.

ORDER: The appeal is sustained, and the record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

2

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.• Falls Church, Virginia 22041

Files: - Baltimore, MD

In re:


APPEAL AND MOTION

Date:


ON BEHALF OF DHS: Billy Sapp Senior Attorney


JAN - 6 2016

This case is before the Board pursuant to a , 2015, order of the United States Court of Appeals for the Fourth Circuit, which granted the Govenunent"s motion to remand. Subsequently, the respondents filed a brief on the merits and alternatively move to remand. The Department of Homeland Security (DHS) has filed a motion to remand for further fact-finding. The DHS's motion will be granted and the record remanded for further proceedings not inconsistent with the Fourth Circuit's order. At the remanded hearing, both parties shall be afforded the opportunity to present additional evidence, both testimonial and documentary. Accordingly, the following orders will be entered:


FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings and the entry of a new decision.

FOR THE BOARD

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In re:


APPEAL AND MOTION

Date:




JAN - 6 2016

This case is before the Board pursuant to a 2015, order of the United States Court of Appeals for the Fourth Circuit, which granted the Govenunent"s motion to remand. Subsequently, the respondents filed a brief on the merits and alternatively move to remand. The Department of Homeland Security (DHS) has filed a motion to remand for further fact-finding. The DHS's motion will be granted and the record remanded for further proceedings not inconsistent with the Fourth Circuit's order. At the remanded hearing, both parties shall be afforded the opportunity to present additional evidence, both testimonial and documentary. Accordingly, the following orders will be entered:



FOR THE BOARD

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Files: Baltimore, MD

In re:


APPEAL AND MOTION

Date:




JAN - 6 2016

This case is before the Board pursuant to a , 2015, order of the United States Court of Appeals for the Fourth Circuit, which granted the Govenunent"s motion to remand. Subsequently, the respondents filed a brief on the merits and alternatively move to remand. The Department of Homeland Security (DHS) has filed a motion to remand for further fact-finding. The DHS's motion will be granted and the record remanded for further proceedings not inconsistent with the Fourth Circuit's order. At the remanded hearing, both parties shall be afforded the opportunity to present additional evidence, both testimonial and documentary. Accordingly, the following orders will be entered:



FOR THE BOARD

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In re:


APPEAL AND MOTION

Date:




JAN - 6 2016

This case is before the Board pursuant to a 2015, order of the United States Court of Appeals for the Fourth Circuit, which granted the Govenunent"s motion to remand. Subsequently, the respondents filed a brief on the merits and alternatively move to remand. The Department of Homeland Security (DHS) has filed a motion to remand for further fact-finding. The DHS's motion will be granted and the record remanded for further proceedings not inconsistent with the Fourth Circuit's order. At the remanded hearing, both parties shall be afforded the opportunity to present additional evidence, both testimonial and documentary. Accordingly, the following orders will be entered:



FOR THE BOARD

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' . 1.



.'Falls Church, Virginia 2204 I

. File: Lumpkin, GA Date: JAN - 6 2f'15 In re:

IN BOND PROCEEDINGS

APPEAL


APPLICATION: Custody Redetermination

The respondent appeals from the Immigration Judge's August 25, 2015, order denying his release on bond. The reasons for the Immigration Judge's order are set forth in a bond memorandum prepared on September 28, 2015. On appeal, the respondent argues that the Immigration Judge erred in finding that he was a significant flight risk and that no amount of bond could ensure his appearance at future proceedings. The appeal will be sustained in part.

We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. § 1003.l(d)(3)(ii).

In determining the appropriate amount of bond, we consider de novo the factors outlined in Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006). The respondent is a single male, a native and citizen of Bangladesh, who recently entered the United States (J.J. at 1, 3). The respondent has an uncle living in Virginia who he says will take care of the respondent by ensuring his appearance at future hearings, providing him a fixed address and a means of support (J.J. at 3; Resp. Br. at I, Tab A). The record indicates that the respondent entered without inspection in his most recent arrival, in order to seek asylum (I.J. at 3). His application for asylum, withholding of removal, and protection under the Convention Against Torture is currently pending before the Immigration Court (I.J. at 1). Furthermore, the respondent does not have a criminal record. We agree with the Immigration Judge that the record does not establish that the respondent is a danger to the community. The Immigration Judge should further evaluate the respondent's request for a reasonable bond. Accordingly, the following orders will be entered.

ORDER: The respondent's appeal is sustained in part.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings.

FOR THE BOARD

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U.S. Department of Justice Executive Of'fice for Immigration Review



In re:


APPEAL

ON BEHALF OF RESPONDENT: Pro se1

APPLICATION: Remand


Date: JAN 2 7 2~1B

This case is before us on remand from the United States Court of Appeals for the Ninth Circuit. On , 2015, the Ninth Circuit granted the government's unopposed motion to remand the proceedings to the Board for further evaluation of the Immigration Judge's denial of the respondent's applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture. The record will be remanded to the Immigration Judge.

In our February 5, 2010, dismissal of the respondent's appeal, we did not rely on the Immigration Judge's adverse credibility decision because, inter alia, we were unsure whether the respondent's credibility was evaluated under pre-REAL JD Act standards.2 Nevertheless, we dismissed the respondent's appeal, as we concluded that he did not establish that his employment-related protests reflect political expression. Following our decision, the Ninth Circuit held that another alien's "pro-labor activities" under analogous circumstances constituted a political opinion. Hu v. Holder, 652 F.3d 1011, 1019-20 (9th Cir. 2011).

Under the c.ircumstances, we will reopen the proceedings and remand the record to the Immigration Judge for further proceedings. Given the passage of time, the Immigration Judge should conduct additional fact-finding concerning the respondent's claims for relief, and render a new decision explicitly recognizing that the respondent's claims are analyzed under pre-REAL ID Act standards.


ORDER: The Board"s February 5, 2010, decision is vacated.

1 An attorney - - represented the respondent previously before the Board. Although did not file a notice of appearance (Form EOIR-27) following remand, we \\li!l provide him a courtesy copy of this decision.

2 Given that the respondent filed his asylum application before May 11, 2005, it is not governed by the REAL ID Act.

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FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings not inconsistent with this decision.

~ .. FOR THE BOARD

2

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Files: - Atlanta, GA

In re:


MOTION

Date:



JAN 1 3 2G15

This matter was last before the Board on June 30, 2015, when we dismissed the respondents' appeal from the Immigration Judge's decision denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture. The respondents have filed a timely motion to reopen. The record before us does not contain a reply from the Department of Homeland Security, and the motion is therefore deemed unopposed. See 8 C.F.R. § 1003.2(g)(3). The motion will be granted.

The respondents allege that their former attorney provided ineffective assistance in representing them before the Immigration Judge and on appeal to the Board. Among the respondents' allegations are that their former attorney failed to properly interview them, failed to submit a separate application for relief for one of the respondents, failed to make any argument in support of their particular social group claim, failed to submit country conditions evidence, failed to develop their Convention Against Torture claim, failed to ask the respondents relevant questions, made a closing argument that did not advocate for the respondents' applications, and failed to file an appeal brief that raised proper challenges to the Immigration Judge's findings.

The respondents' motion appears to comply with the technical requirements for ineffective assistance claims as set out in Matter of Lozada, 19 I & N Dec. 637 (BIA 1988). Furthermore, the respondents have satisfied the prejudice requirement. See Ali v. U.S. Att'y Gen., 643 F.3d 1324, 1329 (11th Cir. 2011) (alien must establish prejudice in order to prevail on ineffective assistance claim); Dakane v. U.S. Atty. Gen., 399 F.3d 1269, 1273-74 (I Ith Cir. 2005); Matter of Assaad, 23 I&N Dec. 553 (BIA 2003) (establishing ineffective assistance of counsel requires an alien to demonstrate prejudice from counsel's conduct, such that it compromised the fundamental fairness of the hearing). Specifically, the respondents have presented evidence concerning the danger of persecution and torture that they face in El Salvador in light of threats they have experienced, the kidnapping and presumed murder of another member of the immediate family, and the alleged refusal of officials at two separate police offices to investigate the kidnapping.

We note that while the Immigration Judge made an adverse credibility finding in this matter, the respondents' former attorney failed to challenge that finding on appeal, and this is one of the

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reasons for the ineffective assistance claim. Furthermore, the Board did not rely on the adverse credibility finding in dismissing the respondents' appeal.

Given the arguments presented by the motion, and the record as a whole, we find it appropriate to grant the respondents' motion and remand the record to the Immigration Judge for a new hearing.

ORDER: The motion is granted.

FURTIIBR ORDER: The record is remanded to the Immigration Judge for a new hearing and for the entry of a new decision.

FOR TIIB BOARD

2

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Files: - Atlanta, GA

In re:


MOTION

Date:



JAN 1 3 2G15

This matter was last before the Board on June 30, 2015, when we dismissed the respondents' appeal from the Immigration Judge's decision denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture. The respondents have filed a timely motion to reopen. The record before us does not contain a reply from the Department of Homeland Security, and the motion is therefore deemed unopposed. See 8 C.F.R. § 1003.2(g)(3). The motion will be granted.

The respondents allege that their former attorney provided ineffective assistance in representing them before the Immigration Judge and on appeal to the Board. Among the respondents' allegations are that their former attorney failed to properly interview them, failed to submit a separate application for relief for one of the respondents, failed to make any argument in support of their particular social group claim, failed to submit country conditions evidence, failed to develop their Convention Against Torture claim, failed to ask the respondents relevant questions, made a closing argument that did not advocate for the respondents' applications, and failed to file an appeal brief that raised proper challenges to the Immigration Judge's findings.

The respondents' motion appears to comply with the technical requirements for ineffective assistance claims as set out in Matter of Lozada, 19 I & N Dec. 637 (BIA 1988). Furthermore, the respondents have satisfied the prejudice requirement. See Ali v. U.S. Att'y Gen., 643 F.3d 1324, 1329 (11th Cir. 2011) (alien must establish prejudice in order to prevail on ineffective assistance claim); Dakane v. U.S. Atty. Gen., 399 F.3d 1269, 1273-74 (I Ith Cir. 2005); Matter of Assaad, 23 I&N Dec. 553 (BIA 2003) (establishing ineffective assistance of counsel requires an alien to demonstrate prejudice from counsel's conduct, such that it compromised the fundamental fairness of the hearing). Specifically, the respondents have presented evidence concerning the danger of persecution and torture that they face in El Salvador in light of threats they have experienced, the kidnapping and presumed murder of another member of the immediate family, and the alleged refusal of officials at two separate police offices to investigate the kidnapping.

We note that while the Immigration Judge made an adverse credibility finding in this matter, the respondents' former attorney failed to challenge that finding on appeal, and this is one of the

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reasons for the ineffective assistance claim. Furthermore, the Board did not rely on the adverse credibility finding in dismissing the respondents' appeal.

Given the arguments presented by the motion, and the record as a whole, we find it appropriate to grant the respondents' motion and remand the record to the Immigration Judge for a new hearing.

ORDER: The motion is granted.

FURTIIBR ORDER: The record is remanded to the Immigration Judge for a new hearing and for the entry of a new decision.

FOR TIIB BOARD

2

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• U.S. Department of Justice Executive Office for Immigration Review



File: -Arlington, Virginia Date:

In re:


APPEAL


ON BEHALF OF DHS: Ian N. Gallagher Assistant Chief Counsel

APPLICATION: Termination of proceedings

JAN 2 a 2016

The respondent has appealed from an Immigration Judge's September 2, 2015, decision which found him subject to removal as charged and ordered him removed from the United States. The Department of Homeland Security has filed a brief in opposition on appeal. The record will be remanded.

The respondent was convicted of sexual abuse of a minor in the District of Columbia on , 2015. The Notice to Appear charged him with being subject to removal pursuant to

section 237(a)(2)(A)(iii) of the Immigration and Nationality Act as an alien who has been convicted of an aggravated felony under section 10l(a)(43)(A) of the Act (sexual abuse of a minor). The Immigration Judge found that the respondent's conviction constituted an aggravated felony at hearings on July 22, 2015, and September 2, 2015 (Tr. at 14-15; 24-25) and he sustained the aggravated felony removal charge. On September 2, 2015, he denied the respondent's motion to terminate proceedings and ordered him removed in a minute order. However, the Immigration Judge did not issue a separate written or oral decision.

In the absence of sufficient analysis and fact finding by the Immigration Judge, the Board is unable to meaningfully fulfill its responsibility of reviewing his decision. See generally Matter of M-P-. 20 I&N Dec. 786 (BIA 1994); Matter of A-P-, 22 I&N Dec. 468 (BIA 1999). See also Matter ofS-H-, 23 I&N Dec. 462 (BIA 2002). Thus, we will remand for the Immigration Judge to issue a separate written or oral decision. We take no position on the merits of the appeal.

ORDER: The record is remanded for the entry of a separate decision.

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File: - Eloy, AZ

In re:

IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF APPLICANT: Prose

ON BEHALF OF DHS: Danielle Sigmund Assistant Chief Counsel

APPLICATION: Change in custody status


Date:

JAN I 2 2G:6

The applicant appeals the Immigration Judge's September 15, 2015, bond order. On October 14, 2015, the Immigration Judge issued a bond memorandum explaining his reasons for concluding that he did not have jurisdiction to conduct a custody redetermination hearing for an alien in withholding-only proceedings. The record will be remanded for further proceedings.

Subsequent to the Immigration Judge's decision, the United States Court of Appeals for the Ninth Circuit issued a precedent decision in the Rodriguez v. Robbins litigation affirming the District Court's permanent injunction as to aliens detained pursuant to sections 235(b), 236(a), and 236(c) of the Immigration and Nationality Act, 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and holding, in relevant part, that "the government must provide periodic bond hearings every six months so that noncitizens may challenge their continued detention .... " Rodriguez v. Robbins, 804 F.3d 1060, 1078-86, 1089 (9th Cir. 2015). The court also specifically found that an alien whose removal is stayed because his or her case is under administrative review - as is the case here - is not detained pursuant to section 24l(a) of the Act. Id. at 1086. We find that a remand is warranted in this case· for the Immigration Judge to provide the applicant with a bond hearing pursuant to the most recent Rodriguez v. Robbins decision. The following order will be entered.


ORDER: The record is remanded to the Inlilligrat n Judge for a new bond hearing in accordance with the above decision and the issuance of a n w decision.

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U.S. Department uf Justice Executive Office for Immigration Review



File: - Chicago, IL Date:

In re:


APPEAL


ON BEHALF OF DHS:


Ellen J. Krupp Assistant Chief Counsel

DEC 3 1 2015

The respondent, a native and citizen of Honduras, appeals the decision of the Immigration Judge, dated September 15, 2015, denying his motion to reopen. The Department of Homeland Security is opposed to the respondent's appeal.

We review Immigration Judges' findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. §§ 1003.l(d)(3)(i), (ii).

As discussed by the Immigration Judge, the respondent did not comply with his duty to provide the Immigration Court with his updated address. See section 239(a)(l)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(l)(F); 8 C.F.R. § 1003.15(d)(2). Moreover, the respondent should not have relied exclusively on the Immigration Case Status Information phone system to determine the date of his removal hearing. Nonetheless, considering the totality of the circumstances presented in this case, we conclude that reopened removal proceedings are warranted in order to provide the respondent with a renewed opportunity to appear before an Immigration Judge to show why he should not be removed from the United States. See 8 C.F.R. § 1003.23(b)(l). At the present time, we express no opinion regarding the ultimate outcome of these proceedings. Accordingly, the following order is entered.

ORDER: The respondent's appeal is sustained, the order of removal, entered in absentia on July 21, 2015, is vacated, the proceedings are reopened, and the record is remanded to the

hnmigratioo c,.., ,,, furthtt -W""'K'" .3 ,,. FOR Tiffi BO~

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, U.S. Department of Jnstice Executive Office for !01I11igration Review


File: - Lumpkin, GA

Decision of the Board oflnnnigration Appeals

Date: JAN l 3 2316 In re:


APPEAL


APPLICATIONS: Asylum; withholding of removal; Convention Against Torture

The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's decision dated September 14, 2015. We review questions of law, discretion, and judgment arising in appeals from decisions of Immigration Judges de novo, whereas we review findings of fact in such appeals under a "clearly erroneous" standard. See 8 C.F.R. § 1003.l(d)(3). The appeal will be sustained, and the record will be remanded.

The respondent appeals the Immigration Judge's determination that he abandoned all applications for relief when he did not submit them by his hearing at 10 a.m. on September 14, 2015. See 8 C.F.R. § 1003.31(c). Counsel states on appeal that he was delayed in preparing the application due to lack of access to the detained respondent. Counsel appeared at the hearing telephonically and informed the Immigration Judge that the relief application had been sent to the Immigration Court by overnight delivery the previous business day, although he acknowledged that it may not arrive by the time of the 10 a.m. hearing (Tr. at 27-28).1 Counsel also informed the Immigration Judge that the application had been sent by fax (Tr. at 27) to demonstrate diligence in his effort to meet the deadline.

Given these facts and the fact that the September 14, 2015, hearing was a master calendar hearing which was scheduled only 6 days after the prior master calendar hearing and at which the merits of the respondent's application would not have been considered, we v•ill sustain the appeal and remand the record to allow the Immigration Judge to consider the respondent's application for relief.

ORDER: The appeal is sustained, and the record is remanded for further proceedings.

FORTHEMG

1 Counsel has submitted evidence on appeal that the package he sent the Immigration Court was delivered at 2:19 p.in. on September 14, 2015.

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File: - Cleveland, Ohio Date:

In re:


MOTION


ON BEHALF OF OHS: Cheryl C. Gutridge Senior Attorney


JAN 1 3 2~~6

The respondent has filed a timely motion to reopen. The Department of Homeland Security (OHS) has opposed the motion. By the motion, the respondent, a native and citizen of El Salvador, seeks to reopen her case and remand for further consideration of her application for asylum, with holding ofrernoval or protection under the Convention Against Torture.

The evidence presented by the respondent in support of the motion relates to the targeting of the respondent's family by members of a gang beginning in 2012, and continuing to the time of the filing. The motion is supported by the respondent's declaration as well as the statements of family members, detailing incidents wherein they and other family members were targeted by gang members in El Salvador. The declarations indicate that the gang members had violently attacked the respondent's family members starting in 2012, and in the of2014 had threatened to kill the respondent's entire family. Given the serious nature of the threats now being made against the respondent's family, including claims of past harm, and in view of the lack of any opposition from the OHS, we will grant the respondent's timely motion to reopen. 1


ORDER: The motion to reopen is granted and the record is remanded to the Immigration Judge for further proceedings consistent with this decision.

FOR THE BOARD

1 The Immigration Judge made an adverse credibility finding in this case, which we upheld in our prior decision. However, the respondent's prior claim was wholly different from the one now made. On remand, the respondent will of course have to establish, inter alia, the credibility of the present claim.

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• · U.S. Department of Justice Executive Office for Immigration ~view

Decision of the Board oflmmignlion Appeals


File: - York, Pennsylvania Date: JAN 1 I 2016 In re:

IN ASYLUM AND/OR WTilillOLDING PROCEEDINGS

MOTION


ON BEHALF OF OHS: Jeffrey T. Bubier Senior Attorney

APPLICATION: Reconsideration

ORDER:

The applicant has submitted a timely motion for reconsideration of our September 2, 2015 decision. In that decision, we remanded the record to the Immigration Judge for further proceedings.2 Contrary to applicant's claim, we did not make a factual finding regarding the applicant's credibility. Instead we remanded for the Immigration Judge to further evaluate the facts and evidence, and make a credibly determination based on the totality of the record. Accordingly, the motion does not identify any error of law or fact in our decision or identify any argument on appeal that was overlooked. See section 240(c)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § l003.2(b)(l); see also Matter of 0-S-G-, 24 l&N Dec. 56 (BIA 2006). Therefore, there is no basis for the reconsideration oftbis matter. Accordingly, the motion is denied.

FURTHER ORDER: The record is remanded for further proceedings consistent with the decision of the Board of September 2, 2015, and for entry of a new decision.

1 The spelling of the applicant's surname is amended per agreement of the parties as reflected in the order of the Immigration Judge of October 15, 2015.

2 Subsequent to the filing of this motion, the Immigration Judge held a hearing in this matter, on October 15, 2015, during which the parties agreed to hold the matter in abeyance for one month, pending the adjudication of this motion, and an order to that effect was so issued by the Immigration Judge.

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U.S..-Depa11ment of Justice Decision of the Board oflmmigration Appeals · Executive Office for Immigration Review


File: - Baltimore, MD Date: JAN - 5 ;n·i~ _..,,! •-J

In re:

IN BOND PROCEEDINGS

APPEAL


APPLICATION: Redetermination of custody

The respondent appeals an Immigration Judge's September 16, 2015, order, as explained in a memorandum dated October 20, 2015, denying his request for a reduction in bond from $30,000 to $2,500. The record will be remanded.

The respondent challenges the Immigration Judge's determination that he presents a flight risk warranting a bond of $30,000 to ensure his appearance at future proceedings. He contends that the Immigration Judge improperly weighed the factors outlined in Board precedent in finding that a reduction in bond from $50,000 to $30,000, rather than a lower amount, was appropriate. The respondent asserts that his due process right to a full and fair hearing was violated because the Department of Homeland Security's ("DHS") allegation that he was affiliated with a gang was vague and stemmed from a report by an unidentified individual whom the respondent was prevented from confronting. He also argues that the $30,000 bond amount amounts to cruel and unusual punishment unwarranted by the facts underlying his 2014 conviction for carrying a concealed weapon. 1

The Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony, under the "clearly erroneous" standard. 8 C.F.R. § 1003.J(d)(3)(i). We review de novo questions of law, discretion, judgment, and all other issues in appeals from decisions of Immigration Judges. 8 C.F.R § 1003.l(d)(3)(ii).

An alien seeking a custody redetermination under section 236(a) of the Act bears the burden of demonstrating that he merits release on bond. Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006). To satisfy that burden, the respondent must show that his release would not pose a danger to persons or property and that he is likely to appear for any future proceedings. Matter of .Adeniji, 22 I&N Dec. 1102, 1111-13 (BIA l 999)(relying on part on 8 C.F.R. § 1236.l(c)(S)).

An Immigration Judge has broad discretion to consider any matter she deems relevant when determining whether an alien's release on bond is permissible or advisable, and therefore a

1 In light of our disposition of this appeal, we do not address the respondent's due process and other constitutional arguments.

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custody determination \vith a "reasonable foundation" will not be disturbed on appeal. Matter of Guerra, supra, at 39-40. The factors that an Immigration Judge may consider in making a determination under section 236(a) of the Act include whether the alien has a fixed address, his or her length of residence, family ties, employment history, record of appearance at court proceedings, criminal record including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses, history of immigration violations, attempts to flee prosecution, and manner of entry into the United States. An Immigration Judge is authorized to consider record evidence of criminal activity whether or not resulting in a conviction. Id. at 40.

In her October 20, 2015, memorandum explaining the September 16, 2015, order finding the respondent to be a flight risk and reducing his bond to $30,000 rather than a lesser amount, the Immigration Judge noted that the respondent had submitted statements of support from family members and friends. She also acknowledged that the respondent intended to seek relief from removal by filing an application for Special Immigrant Juvenile Status, and that his counsel asserted that he may be eligible for special rule cancellation of removal pursuant to the Nicaraguan Adjustment and Central American Relief Act ("NACARA"), Pub. L. No. 105-100, 111 Stat. 2193, 2196, amended by Pub. L. No. 105-139, 111 Stat. 2644. The Immigration Judge also concluded that the DHS had not presented sufficient evidence to establish that the respondent was affiliated with a gang.

Additionally, the Immigration Judge pointed out that the respondent had sustained a 2014 conviction for carrying a concealed weapon. Observing that the respondent's potential for relief from removal was speculative, generating flight risk concerns, the Immigration Judge stated that she was unwilling to reduce his bond further than to $30,000.

The respondent argues that the Immigration Judge did not consider his fixed address in the United States; his family ties including his immediate family and his United States citizen fiancee; his work history; the fact that he appeared for all proceedings related to his criminal trial; his minor criminal history and minimal history of immigration violations; and his cooperation with immigration officials. The respondent points out that the criminal judge set his bond at only $2,000, an order which he asserts is entitled to deference pursuant to an unpublished Fourth Circuit case. He also contends that there is no probative evidence that he maintains a gang affiliation.2

We recognize the Immigration Judge's broad discretion in bond determinations. Matter of Guerra, supra. However, we are unable to meaningfully review the Immigration Judge's decision in the absence of factual findings on these factors, and we therefore deem it appropriate to remand the record for the Immigration Judge to consider all of the respondent's equities and determine whether a lower bond amount would be sufficient to guarantee his appearance at future proceedings. Matter of Adeniji, supra; see };fatter of Patel, I 5 I&N Dec. 666 (BIA 1976) (factors unique to each alien must be considered in determining suitability for release from custody).

2 The Immigration Judge concluded that the DHS had not proven that the respondent was a member of a gang, so we do not consider the respondent's arguments as to gang affiliation.

2

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Ac_cordingly, the following order will be entered.

ORDER: The record is remanded for further proceedings consistent with this decision and the entry of a new decision.

FOR THE BOARD

3

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File: 2- San Francisco, CA

In re:

IN BOND PROCEEDINGS

APPEAL


Date: JAN I 4 2G16



The respondent appeals from an hnmigration Judge's October 1, 2015, decision denying his request for release from the custody of the Department of Homeland Security ("OHS"), 1 The record will be remanded,

The respondent, who claims to be a native and citizen of Bangladesh, has been detained in OHS custody since March 2015, when he presented himself for inspection at a United States port of entry without identification and without a visa or other entry document On October 1, 2015, the hnmigration Judge convened a custody review hearing for the respondent pursuant to Rodriguez v, Robbins, 715 F3d 1127 (9th Cir. 2013). At the conclusion of that hearing, the Immigration Judge found that the OHS had established by clear and convincing evidence that the respondent should remain in detention because he poses a serious flight risk.2 On appeal, the respondent argues that the OHS did not prove by clear and convincing evidence that he is a flight risk.

We discern no error in the Immigration Judge's flight risk determination. The respondent has no fixed address in the United States and little objective proof of his identity and background. The respondent concedes that he traveled from Bangladesh to South America on a false passport bearing someone else's name. Further, the respondent's only basis for seeking possible lawful status in the United States is an asylum claim, but that claim faces highly uncertain prospects. A Record of Deportable/lnadmissible Alien (Form I-213) prepared at the time of the respondent's apprehension reflects that he told investigators he was beaten in Bangladesh and had a fear of persecution in that country arising from his political activity (Exh. B-2), yet in Immigration Court he stated that he was never politically active in Bangladesh and that his fear of persecution arose from his brother's political activities rather than his own (Tr. at 23, 25-26). Further, the respondent testified that he transited numerous countries on his way from Bangladesh-including Dubai, Brazil, Argentina, Peru, Bolivia, Panama, Guatemala,

1 The reasons for the Immigration Judge's decision are set forth in a bond memorandum dated October 20, 2015.

2 The hnmigration Judge did not find that the respondent's release would pose a danger to the community.

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·'·

and Mexico (Tr. at 16-17, 20, 21; Exh. B-2)--evidently without requesting asylum until he arrived in the United States. Despite assurances from a family friend that the respondent could stay with him, the Immigration Judge did not err in fmding that the DHS had carried its burden of proving that the respondent has little incentive to appear for future hearings or, if necessary, for removal.

Although the Immigration Judge's flight risk determination was proper, we nonetheless conclude that the record must be remanded for further fact-finding regarding the practicability of alternatives to detention. The fact that the respondent poses a flight risk justifies his continued detention only if the DHS establishes that there is no amount of bond that would be reasonably calculated to ensure his future appearance. The Immigration Judge's bond memorandum contains no analysis of this question. Further, if payment of a bond is impracticable for some reason, the Immigration Judge should consider other alternatives to detention or explain why they are unavailable. See Rodriguez v. Robbins, 804 F.3d 1060, 1087-88 (9th Cir. 2015).

The following order shall be issued.

ORDER: The record is remanded for further proceedings consistent with the foregoing opinion and for entry of a new decision.

FOR THE 'ff}ARD

2

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U.S. Department of Justice · Executi"e Offic; for Immigration Review


File: - Tacoma, WA

In re:

IN BOND PROCEEDINGS

APPEAL


Date:



The respondent has appealed from the Immigration Judge's custody decision dated October 6, 2015. The Immigration Judge issued a bond memorandum setting forth the reasons for the custody dc:cision. The record will be remanded.

We review Immigration Judges' findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues, de hovo. 8 C.F.R. § 1003.l(d)(3)(i), (ii).

We acknowledge the arguments raised by the respondent on appeal. However, we find no clear error in the Immigration Judge's findings as to, among other things, the respondent's minimal family and community ties. See 8 C.F.R. § 1003.l(d)(3)(i). The Immigration Judge properly weighed the relevant factors in reaching the no bond determination. See Matter of Guerra. 24 I&N Dec. 37 (BIA 2006) (affording the Immigration Judge broad discretion in considering factors that may be considered); 8 C.F.R. § !003.19(d). See also generally Matter of D-R-, 25 I&N Dec. 445, 455 (BIA 2011) (lnnnigration Judge is not required to interpret evidence in the manner advocated by the respondent).

However, as the respondent has been detained by the Department of Homeland Security since , 2015, he now appears eligible for an individualized bond hearing pursuant to Rodriguez v. Robbins, 804 F Jd I 060 (9th Cir. 2015) (holding that the government must provide periodic bond hearings every six months so that noncitizens may challenge their continued detention) (Exh. B-1 ). The record will be remanded to the Immigration Judge to conduct a bond hearing pursuant to Rodriguez v. Robbins, supra, and under the stated procedural safeguards and standard of proof discussed in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011).


ORDER: The record is remanded to the lnnnigration Judge for a new bond hearing in accordance with the above decisions and the issuance of a new decision.

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(b) (6)

(b) (6)

U.S.. Depmiment of Justice Executive Office for Inunigration Review



File: - Los Fresnos, TX Date:

In re:


APPEAL


ON BEHALF OF DHS: Mark R. Whitworth Assistant Chief Counsel

JAN 1 4 2Gl6


The respondent, a native and citizen of Eritrea, appeals from the decision of the Immigration Judge dated October 1, 2015, denying his applications for asylum and withholding of removal under sections 208(b)(l)(A) and 24l(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(b)(l)(A), 123l(b)(3)(A). The Department of Homeland Security (DHS) opposes the respondent's appeal of these issues, but has not appealed from the Immigration Judge's grant of protection under the Convention Against Torture (I.J. at 9). The record will be remanded.

We review the findings of fact made by the Immigration Judge under a "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). All other issues, including whether the parties have met the relevant burden of proof, and issues of discretion, are reviewed under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii). As the respondent submitted his asylum application after May I I, 2005, it is governed by the provisions of the REAL ID Act of 2005. Matter of S-B-, 24 I&N Dec. 42 (BIA 2006).

A remand is warranted because we agree with the respondent that the Immigration Judge appears to have found that the respondent experienced past persecution at the hands of the Eritrean military on account of his political opinion (1.J. at 7), but did not properly apply the resulting presumption that the respondent has a well-founded fear of future persecution or shift the burden of proof to the DHS to rebut that presumption, as required by regulation. See 8 C.F.R. §§ 1208.13(b)(l), 1208.16(b)(l). Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion, and for the entry of a new decision.

FOR THE BOARD

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U.S. Department of Justice Executive Office for hmnigration Review


File: - Miami, FL

In re:


APPEAL

ON BEHALF OF RESPONDENT: Prose

ON BEHALF OF DHS: Michael A. Mansfield Assistant Chief Counsel


Date: JAN I 5 2015


The respondent, a native and citizen of Jamaica, who was previously granted lawful permanent resident status in the United States, has appealed from the Immigration Judge's decision dated October 7, 2015. The Immigration Judge found the respondent removable, pretermitted his applications for asylum and withholding of removal, under sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 123l(b)(3), and denied his request for protection under the Convention Against Torture, under 8 C.F.R. §§ 1208.16

. through 1208.18. 1 The respondent challenges denial of relief. The record will be remanded.

This Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony, under the "clearly erroneous" standard. See 8 C.F.R. § 1003.l(d)(3)(i); Matter of R-S-H-, 23 I&N Dec. 629 (BIA 2003 ); Matter of S-H-, 23 I&N Dec. 462 (BIA 2002). This Board reviews questions of law, discretion, and judgment, and all other issues raised in an appeal of an Immigration Judge's decision de novo. See 8 C.F.R. § 1003.l(d)(3)(ii).

We agree with the Immigration Judge, for the reasons stated in his decision, that the respondent did not demonstrate eligibility for asylum or withholding of removal. The respondent did not show that he has not been convicted of an aggravated felony to qualify for asylum (I.J. at 4).2 In addition, he did not show that he has not been convicted of a particularly serious crime to qualify for withholding ofremoval (l.J. at 4).3

1 Because the application (Form I-589) was filed after May 11, 2005, the provisions of the REAL ID Act of2005, Div. B of Pub. L. No. 109-13, 119 Stat. 231 (effective May 11, 2005), are applicable here. See 1\1atter ofS-B-, 24 I&N Dec. 42 (BIA 2006).

2 An alien who has been convicted of an aggravated felony is statutorily ineligible for asylum. See section 208(b)(2)(B)(i) of the Act, 8 U.S.C. § l 158(b)(2)(B)(i); 8 C.F.R. § 1208.B(c).

3 An alien who has been convicted of a "particularly serious crime" is statutorily ineligible for withholding of removal. See section 24l(b)(3)(B)(ii) of the Act, 8 U.S.C. § 123l(b)(3)(B)(ii);

(continued ... )

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With regard to the request for protection under the Convention Against Torture, the respondent says he 'Nill be tortured because he is gay. Because the respondent did not provide testimony or statements from his lovers or family members to establish that he is gay, and because there was contrary evidence in the record, the Immigration Judge found he failed to carry his burden of proof to establish he is gay and at risk for torture on that basis in Jamaica (l.J. at 5-6). On appeal, the respondent submits letters corroborating his claim to be gay. In light of that, we find it appropriate to remand the record to enable the Immigration Judge to consider this evidence.


ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and entry of a new decision.

( ... continued) 8 C.F .R. § 1208. I 6( d)(2). An alien has been convicted of a "particularly serious crime" if he has been convicted of aggravated felonies for which the aggregate sentence is 5 years or more.

2

(b) (6)

U.S. Department uf Justice Executive Office for Immigration Review


File: -Napanoch, NY

In re:


APPEAL


ON BEHALF OF DHS: Daniel W. Kelly Assistant Chief Counsel

APPLICATION: Remand


Date:

JAN - 5 2016

The respondent, a native and citizen of Jamaica, appeals from the Immigration Judge's September 29, 2015, decision, ordering him removed from the United States. The Department of Homeland Security (OHS) opposes the appeal. The record will be remanded for further proceedings.

We review Immigration Judges' findings of fact for clear error, but questions of law, discretion, and judgment and all other issues in appeals, de novo. 8 C.F.R. § l003.l(d)(3).

Considering the totality of the circumstances presented in this case, we will remand the record to the Immigration Court for further proceedings. The record evidence indicates that the respondent previously filed a petition to remove the conditions on his residence (Form I-751) pursuant to section 216(c)(4) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § l 186a(c)(4) with the DHS' United States Citizenship and Immigration Services (USCIS). The USCIS subsequently denied the Form I-751 after the respondent failed to respond to a request for evidence (Exh. 2). At the respondent's removal proceeding on September 29, 2015, the Immigration Judge did not inform him that, notwithstanding his divorce, he has the right to file a renewed Form I-751 under section 216(c)(4)(B) of the Act. The federal regulations require an Immigration Judge to inform the respondent of any relief from removal for which he may be eligible. See generally 8 C.F.R. § 1240.11; see also Matter of Cordova, 22 I&N Dec. 966,970-71 (BIA 1999) (discussing the Immigration Judge's duty to inform aliens as to forms of relief they may be "apparently eligible"). Thus, we find remanded proceedings warranted to allow the respondent the opportunity to file a renewed Form I-751. At the present time, we express no opinion regarding the ultimate outcome of these proceedings at the present time.


ORDER: The record is remanded to the Immigration Court for further proceedings consistent with this order and the entry of a new decision.

(b) (6)

(b) (6)

U.S. Department of J~stice Executive Office for Immigration Review

Falls Church, V1tgima 22041

File: - Atlanta. Georgia

In re:


APPEAL AND MOTION


Date:


ON BEHALF OF OHS: Hayden Colby Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(ii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(ii)] -Convicted of two or more crimes involving moral turpitude

Sec. 237(a)(2)(A}(iii), l&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] -Convicted of aggravated felony

Sec. 237(a)(2)(B)(i}, I&N Act [8 U.S.C. § 1227(a)(2)(B)(i)] -Convicted of controlled substance violation

APPLICATION: Termination

The respondent filed a timely appeal of an Immigration Judge's September 30, 2015, decision. While the respondent's appeal was pending before the Board, the respondent filed a motion to remand to terminate these proceedings, supported by evidence that the 2015 South Carolina controlled substance conviction underlying the grounds of removal (i.e., a conviction for a controlled substance violation, a crime involving moral turpitude offense, as well as a "drug-trafficking" aggravated felony) supporting the Immigration Judge·s findings of removability in this case, has been vacated by the South Carolina sentencing court on constitutional grounds. 1 See Matter of Pickering, 23 I&N Dec. 621 (BIA 2003). rev'd on other grounds, Pickering v Gonzales, 465 F.3d 263 (6th Cir. 2006) (holding that if a court vacates a conviction based upon a procedural or substantive defect in the underlying proceedings, there is no longer a conviction for immigration purposes).

The South Carolina criminal court's action was premised upon what it perceived to be a procedural and constitutional defect in the underlying criminal proceedings. The United States Court of Appeals for the Eleventh Circuit, in whose jurisdiction this case arises, has held that

1 Specifically, the respondent has offered an Order from the Court of Common Pleas of , South Carolina, dated . 2015, granting the respondent's motion

to vacate the plea, judgement, and sentence, imposed in this matter on , 2015, for the offense of Manufacturing Methamphetamine in violation of § 44-53-3 75 of the South Carolina Code of Laws, on constitutional grounds.

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,

where an alien's conviction is vacated for just such a reason, he no longer stands convicted for immigration purposes. See Garces v US. Atty. Gen., 611 F.3d 1337, 1345 (I Ith Cir. 2010) (giving full faith and credit to a Florida court's determination that the judgment of conviction was flawed because the respondent was deprived of a right he did have under Florida law); see also Alim v. Gonzales, 446 F.3d 1239, 1250-52 (I I th Cir. 2006) (vacatur of a conviction because of a constitutional, statutory, or procedural defect in the underlying criminal proceedings is no longer a "conviction" for immigration purposes); Maner of Adamiak, 23 l&N Dec. 878 (BIA 2006). We observe the respondent's motion was properly served on the Department of Homeland Security ("OHS"), and the OHS has filed no opposition or other response to this motion, and the motion is deemed unopposed. See 8 C.F.R. § 1003.2(g)(3).

Consequently, in view of the foregoing, and the lack of any expressed opposition by the OHS, the record will be remanded to the Immigration Court for further proceedings, in order to enable the Immigration Judge to consider the new evidence offered by the respondent. Accordingly, the record will be remanded to the Immigration Court for further proceedings consistent with the foregoing opinion, and the entry of a new decision.

ORDER: The record is remanded to the Immigration Court for further proceedings consistent with this opinion, and the entry of a new decision.

2

(b) (6)



File: - Eloy, AZ

In re:

IN BOND PROCEEDINGS

APPEAL


ON BEHALF OF OHS: Jenny Green Assistant Chief Counsel

APPLICATION: Redetermination of custody status


Date: JAN - B 2rl16

The respondent appeals from an Immigration Judge's October 15, 2015, decision denying on jurisdictional grounds the respondent's request for a custody redetermination hearing. The Department of Homeland Security ("OHS") opposes the appeal. The record will be remanded.

In February 2006, the respondent-a native and citizen of El Salvador-was ordered removed from the United States in absentia by an Immigration Judge, and in 2014 that removal order was executed by the DHS. The respondent was subsequently apprehended after reentering the United States unlawfully, and thus in March 2015 her removal order was reinstated pursuant to section 241(a)(5) of the Immigration and Nationality Act, 8 U.S.C. § 123l(a)(5). The DHS did not immediately return the respondent to El Salvador pursuant to that reinstated removal order, however, because the respondent claims eligibility for withholding of removal under section 241 (b )(3)(A) of the Act and was found by an asylum officer to have a "reasonable fear" of persecution in her home country. See 8 C.F.R. §§ 241.8(e), 1208.31. On August 4, 2015, the OHS referred the respondent's withholding of removal application to the Immigration Judge for "withholding-only" proceedings pursuant to 8 C.F.R. § !208.3l(e), and those proceedings remain ongoing. The respondent has now been detained by the DHS since her apprehension in March 2015-a period of about 9 months.

On September 28, 2015, the respondent filed a motion requesting that the Immigration Judge grant her a custody review hearing pursuant to the decision of the United States Court of Appeals for the Ninth Circuit in Rodriguez v. Robbins (Rodriguez 'JI), 715 F.3d 1127 (9th Cir. 2013), which held in relevant part that bond hearings in Immigration Court must be made available to aliens who have been detained by the DHS for more than 180 days pursuant to sections 235(b) or 236(c) of the Act, 8 U.S.C. §§ 1225(b), 1226(c). The Immigration Judge denied that motion, however, concluding tbat the respondent was not eligible for a Rodriguez II hearing because she. was not being detained pursuant to sections 235(b) or 236(c) (l.J. at 2-3). This timely appeal followed.

Upon de novo review, we conclude that the respondent is entitled to an individualized custody review hearing in Immigration Court. In drawing this conclusion, we acknowledge that

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Rodriguez II does not render the respondent eligible for such a hearing; as the Immigration Judge determined, an alien in withholding-only proceedings under 8 C.F.R. § 241.8(e) is not detained pursuant to sections 235(b) or 236(c) of the Act. Indeed, Ninth Circuit law is unclear as to the particular statute which authorizes the detention of aliens in withholding-only proceedings; that question has divided the district courts within the Ninth Circuit, with some judges holding that such aliens are detained pursuant to section 24l(a)(6) of the Act and others holding that they are detained pursuant to section 236(a). Compare Castaneda v. Aitken, No. 15-CV-01635-MEJ, 2015 WL 3882755, at *5 (N.D. Cal. June 23, 2015) (holding that aliens in withholding-only proceedings under 8 C.F.R. § 241.8(e) are detained pursuant to section 24l(a)(6) of the Act); Acevedo-Rojas v. Clark, No. C14-1323-JLR, 2014 WL 6908540, at *4 (W.D. Wash. Dec. 8, 2014) (same); Giron-Castro v. Asher, No. 14-867-JLR, Dkt. 22, 2014 WL 8397147, at *2 (W.D. Wash. Oct. 2, 2014) (same), with Mendoza v. Asher, No. C14-0811-JCC-JPD, 2014 WL 8397145, at * l (W.D. Wash. Sept. 16, 2014) (holding that aliens in withholding-only proceedings under 8 C.F.R. § 241.8(d) are detained pursuant to section 236(a) of the Act); Castillo v. ICE Field Office Director, 907 F. Supp. 2d 1235, 1341 (W.D. Wash. 2012) (same).

Ultimately, however, which statute authorizes the respondent's detention is an academic question because the Ninth Circuit has made cleai' that bond hearings must be made available to aliens detained for more than 180 days under either section 236(a) or section 24l(a)(6). Specifically, although the holding in Rodriguez II extended only to aliens detained pursuant to sections 235(b) and 236(c) of the Act, the Ninth Circuit very recently extended that holding to aliens detained pursuant to section 236(a). See Rodriguez v. Robbins (Rodriguez Ill), 804 F.3d 1060, 1084-85 (9th Cir. 2015). Furthermore, if the respondent is detained pursuant to section 24l(a)(6), then she is eligible for a custody review hearing pursuant to Diouf v. Napolitano (Diouf II), 634 F.3d 1081, 1086 (9th Cir. 2011); accord Zadvydas v. Davis, 533 U.S. 678, 690-701 (2001).

Given the present state of Ninth Circuit law and the fact that the respondent has been detained in DHS custody for more than 180 days, the record will be remanded for a custody review hearing in which the DHS will bear the burden of proving by clear and convincing evidence that the respondent is a danger to the community or a flight risk.

ORDER: The record is remanded for further proceedings consistent with the foregoing opinion and for entry of a new decision.

2

(b) (6)

U.S. Department of Justice Executive Office for lmmigration Review . ' Falls Church, Virginia 22041

File: - Newark, NJ

In re:


MOTION


Date: DEC 3 1 2015


APPLICATION: Reopening; stay of removal

The respondent moves the Board pursuant to section 240(c)(7) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(7), and 8 C.F.R. § 1003.2 to reopen his removal proceedings to reapply for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). In our December 17, 2002, order we affirmed without opinion the Immigration Judge's August 12, 1999, decision which found him removable and denied his applications for asylum, withholding of removal, and protection under the CAT. The record before us does not contain a response from the Department of Homeland Security. The motion will be granted.

The respondent's motion to reopen filed in November of 2015 is untimely. He shows changed country conditions or changed circumstances in Syria that are material to his asylum, withholding, and CAT protection claims.

In the Immigration Judge's decision she accepted the fact that the respondent is Kurdish (l.J. at 11). His final merits hearing was held on August 12, 1999. Country conditions evidence in the record includes the Bureau of Democracy, Human Rights, and Labor, U.S. Dep't of State, Syria Countr)l Report on Human Rights Practices - 1998 (Feb. 1999) [Exh. 3]. We take administrative notice that the Islamic State of Iraq and the Levant ("ISIL") a.k.a. the Islamic State of Iraq and Syria ("ISIS") did not exist in 1998 or 1999.

The respondent's recent country conditions evidence shows that in Syria, Kurdish militias have had the most success in holding off ISIL (http://w\VVv.thenewdaily.com.au Sept. 11, 2015 article). The Kurdish enclave ofKobani in north-east Syria was largely in ruins after an over 4-month siege by !SIL fighters that ended in January of2015. On June 25, 2015, around 100 !SIL fighters disguised in Kurdish militia uniforms entered Kobani and a neighboring village and began a massacre that left between 223 and 233 men, women, and children dead (http://www.independent.co.uk Sept. 3, 2015, article). We conclude that the respondent shows changed country conditions or changed circumstances in Syria which are material to his asylum, withholding, and CAT protection claims. 1

1 Because we so conclude, we need not address whether the respondent shows changed country conditions or changed circumstances in Syria with regard to his fear of harm from the Syrian Government upon his return there.

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. '

The respondent, through counsel, presents a report by a licensed psychologist which concludes, based on a psychological evaluation of the respondent, that he would not be competent to meaningfully participate in his immigration proceedings (Motion Exhibit). Upon remand the Immigration Judge should make a determination regarding the respondent's competency, and if she finds that he is not competent, put appropriate safeguards in place. The respondent's stay request has been rendered moot.


ORDER: The motion to reopen is granted.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings not inconsistent with the foregoing opinion and for the entry of a new decision.

FOR THE BOARD

2

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U.S. Department of Justice Executive Office for lmnugration Review



File: - Oakdale, LA Date:

In re:


APPEAL


ON BEHALF OF OHS: Adam Jovanovic Assistant Chief Counsel

ORDER:

Jt.il I ~ ZG16

The respondent is a native and citizen of Honduras. She appeals from an Immigration Judge's October 6, 2015, summary order, which stated that she made no application for relief from removal, and had waived the right to appeal to this Board. We have reviewed the respondent's arguments contained in her brief, as well as arguments in the brief of the Department of Homeland Security, and have considered the totality of the circumstances presented. Upon such review, the Board finds it appropriate to remand this case to the Immigration Court for a new hearing. The Immigration Judge's order of October 6, 2015, is, therefore, vacated. The record is remanded to the Immigration Court for the respondent to seek asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158, and any other relief to which she may be entitled.

~~ ... FOR THE BOARD

(b) (6)

(b) (6)

(b) (6)

U.S. Departmi;nt of Justice Executive Office for Immigration Review

Falls Chnrch, Virginia 22041

File: - Tacoma, WA

In re:

IN BOND PROCEEDINGS

APPEAL


APPLICATION: Redetennination of custody status


Date:

The respondent, a native and citizen of El Salvador, appeals the bond decision of the hnmigration Judge, dated October 22, 2015, denying his request for a change in custody status.

We review hnmigration Judges' findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. §§ 1003.l(d)(3)(i), (ii).

Considering the totality of the circumstances presented in this case, we conclude that the respondent has established that he is not such a flight risk that no bond, whatsoever, should be set in this case. See Matter of Guerra, 24 I&N Dec. 3 7 (BIA 2006). The respondent has some relatives in the United States and has passed a credible fear interview. While we have considered that the respondent recently arrived in the United States, and, therefore, poses some risk of flight, we ultimately conclude that a bond amowit, which could mitigate that risk, should be considered in this case. Accordingly, the record will be remanded to the hnmigration Judge to determine an appropriate amowit of bond and any additional conditions to ensure the respondent's appearance at future proceedings. The following order is entered.

ORDER: The record is remanded to the hnmigration Court for further bond proceedings consistent with the foregoing opinion and the entry of a new decision.

(b) (6)

(b) (6)



File: Tucson, AZ

In re:


INTERLOCUTORY APPEAL

Decision of the Board ofluunigration Appeals

Date: JAN - 8 2016


The respondent has appealed from the Immigration Judge's decision dated October 9, 2015, administratively closing the respondent's removal proceedings. The Department of Homeland Security (DHS) apparently did not move to adrninistratively close these proceedings until the onset of the individual calendar hearing that had been scheduled from 8:30 to 12:00 on that date to hear the respondent's application for asylum. There had been multiple hearings prior to that individual hearing that had been docketed for over eight months and the respondent had timely filed all of the documents requested by the Immigration Judge by the earlier "call up" date. · We find it appropriate to exercise our jurisdiction over this case and address the respondent's appeal.

Immigration Judges and the Board may administratively close removal proceedings, even if a party opposes, if it is otherwise appropriate under the circumstances. See Matter of Avetisyan, 25 I&N Dec. 688, 690 (BIA 2012). In this matter, given the entirety of circumstance presented, we find that the Immigration Judge erred in declining to proceed with the already scheduled individual calendar hearing on October 9, 2015, and administratively closing these proceedings over the objections of the respondent. The record will be remanded to provide the respondent the opportunity to pursue his application for asylum and related relief.

ORDER: The Immigration Judge's decision dated October 9, 2015, is vacated, and the record is remanded for further proceedings not in consistent with this order, and for the entry of a new decision.

(b) (6)

(b) (6)

(b) (6)

U.S. Department of Justice Decision of the Board of Immigration Appeals .. Executive Office for Immigration Review


File: - Arlington, VA Date:

In re:


MOTION



J.A.N 2 7 2G15

The respondent seeks reopening to apply for asylum and withholding of removal, given the

change in law since the time of the respondent's hearing concerning women subject to female

genital mutilation. We deem the motion unopposed, as the Department of Homeland Security

has not responded to the motion. 8 C.F.R. § 1003.2(g)(3). Given the circumstances, we will sua

sponte grant the motion and remand the record to the Immigration Judge.

ORDER: The respondent's motion to reopen is granted.


proceedings not inconsistent with this order and entry of a new decision.

FOR THE BOARD

(b) (6)

(b) (6)

(b) (6)

U.S. Department of Justice Executive Office fur Immigration Review



File: - Arlington, VA Date: J.A.N 1 9 2315

In re:

£N REMOVAL PROCEEDrNGS

MOTION



The respondent has filed a timely motion to reopen proceedings. The Department of Homeland Security (DHS) has not filed a reply to the motion, and the motion is deemed unopposed. See 8 C.F.R. § I003.2(g)(3). The motion will be granted.

The respondent was previously granted cancellation of removal under section 240A(b)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(I), by the Immigration Judge. The DHS appealed from the decision. Based on the evidence of record at the time of the last hearing, the Board sustained the appeal. The respondent has now submitted evidence of changed conditions since his 2012 hearing that supports his cancellation of removal application. The respondent has also submitted an application for asylum, withholding of removal, and protection under the Convention Against Torture. Given the new evidence and the lack of opposition to reopening from the DHS, we will grant the respondent's motion and will remand the record to the Immigration Judge for further proceedings in which to consider the respondent's applications for relief from removal. See section 240(c)(7) of the Act, 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c); see also INS v. Abudu, 485 U.S. 94 (1988).

ORDER: The respondent's motion to reopen is granted.

FURTIIER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

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File: - Philadelphia, PA Date: JAN I 5 2m6

Inre:


APPEAL AND MOTION


APPLICATION: Reinstatement of proceedings; remand

In a decision dated Febrnary 28, 2001, this Board ordered that these proceedings be administratively closed. Now, the respondent has filed a motion to reinstate and remand proceedings to the Immigration Judge so that she can further pursue an application for the relief of asylum and withholding of removal. The Department of Homeland Security ("OHS') has not filed an opposition to this request, and thus it is therefore deemed unopposed. 8 C.F.R. § 1003.2(g)(3). Accordingly, this motion will be granted.

ORDER: The Board's Febrnary 28, 2001, decision is hereby vacated.

FURTHER ORDER: The respondent's motion to reinstate these proceedings is granted.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings not inconsistent with this order and for the entry of a new decision.

FOR THE BOARD

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File: - Lumpkin, GA

In re:


APPEAL


ORDER:

Decision of the Board of lmn11grat1on Appeals

Date:

Considering the record before us and the entry of an appearance by counsel on the

respondent's behalf, we review the November 9, 2015, decision of Immigration Judge by

certification. vacate that decision, and remand the record to the Immigration Court to provide the

respondent a further opportunity to demonstrate his eligibility for relief from removal. 1 We

express no opinion on the respondent's ultimate eligibility for such relief.


proceeding and the entry of a new decision.

{ FOR THE BOARD

1 The record before us includes a transcript of a hearing held on September 28, 2015, during which the respondents then present were provided their rights warnings. However, the record does not reflect that the respondent was present at that hearing. While the Immigration Judge was accommodating the respondent's expressed desires at the November 9. 2015, hearing, there was no discussion of his rights on the record during that hearing, nor was the respondent asked at the conclusion of the hearing whether he waived his right to appeal.

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U.S. Department of Justice Executive Office for Immigration Revie\V


Falls Church. Virginia 2204 I

File: - Detroit. MI Date:

In re:

IN DEPORTATION PROCEEDINGS

APPEAL


ON BEHALF OF DHS: Rosario Shoudy Assistant Chief Counsel

Al\fENDED DECISION

ORDER:

JAN 1 2 2315

Our original December 15, 2015, decision inadvertently omitted text. To correct the error in

our original decision, the Board's order of December 18, 2015, in this matter is vacated and the

proceedings reinstated upon the Board's own motion. 8 C.F.R. § 1003 .2(a). A final order in the

matter is hereby issued as of this date, incorporating by reference the text of the attached vacated

order, with the exception that a new paragraph is begun at the top of page 2 beginning as follows:

The Immigration Judge made an explicit finding that the respondent was not a credible witness.

On appeal, the respondent contends that it is not clear what specific findings of fact the

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• • · if.S. Department of Justice Decision of the Board oflmmigration Appeals Executive Office for Immigration Review


File: - Detroit, MI Date:

In re:

IN DEPORTATION PROCEEDINGS

APPEAL


ON BEHALF OF DHS: Rosario Shoudy Assistant Chief Counsel

CHARGE:

Order: Sec. 24l(a)(l)(B), I&N Act [8 U.S.C. § 125l(a)(l)(B)] • Nonimmigrant - remained longer than permitted

DEC f 8 2015

APPLICATION: Asylum; withholding of deportation; Convention Against Torture; voluntary departure

The respondent is a native and citizen of Bangladesh. In a decision dated May 29, 2014, the Immigration Judge denied the respondent's applications for asylum, withholding of deportation, protection under the Convention Against Torture, and voluntary departure, and ordered him deported from the United States to Bangladesh. See sections 208 and 243(h) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1253(h); 8 C.F.R. §§ 1208.16-.18. We note that the Immigration Judge's decision also related to the respondent's 'Nife. This appeal only relates to the husband, as the wife did not also appeal.

We review the findings of fact, including the determination of credibility, made by the Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion, under a de nova standard. 8 C.F.R. § 1003.l(d)(3Xii). Because the respondent's application for relief (Form I-589) was filed in March of 1994, it is not subject to the provisions of the REAL ID Act of 2005 (Exh. 2). This matter arises in the jurisdiction of the Sixth Circuit, which has held that an adverse credibility determination must be supported by specific reasons. See Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004); Daneshvar v. Ashcroft, 355 F.3d 615, 620 n.2 (6th Cir. 2004) (minor and irrelevant inconsistencies cannot form the basis for an adverse credibility determination); Liti v. Gonzales, 411 F.3d 631, 637 (6th Cir. 2005) (omissions from an application may support an adverse credibility finding as long as they substantially related to the asylum claim).

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• • •

Immigration Judge relied on in reaching an adverse credibility finding (Respondent's Briefat 15, 16). We disagree and note that the Immigration Judge's adverse credibility finding was based upon conspicuous, inadequately explained inconsistencies between the respondent's testimony and his original asylum application (l.J. at 9-24). The Immigration Judge noted that the respondent's application demonstrates a high degree of knowledge of the English language (l.J. at 9, JO, 19). The Immigration Judge found the respondent's protestation that he did not understand the application is belied by the language of the filled out application that was in his own handwriting (I.J. at 24).

The Immigration Judge noted that in his application, the respondent indicated that Jatiya Party leaders and others have been threatened, assaulted, and harassed, but he checked a box indicating that he and his family have not been mistreated or threatened (l.J. at I 0, 11; Exh. 2 at 3). In his application, the respondent also checked that he is single and that he and his family members have not belonged to or been associated with any organizations or groups in Bangladesh (l.J. at JO, 11; Exh. 2 at 1, 3). The Immigration Judge noted that in the respondent's 20 I 0 asylum application, he listed a number of discrete incidents involving attacks on himself and his family, and the Immigration Judge found it clear that he was in the United States for economic reasons, not because he feared for his life (I.J. at 12; Exh. 3 ). The Immigration Judge did not find the respondent's explanation for his responses in his original application to be convincing (I.J. at 19, 20). The Immigration Judge also found the respondent's testimony was discredited by the testimony of a witness, . Mr. visited the respondent in

of 1991, at which time the respondent's right hand was bandaged and a finger on his left hand had a bandage, and Mr. testified that these injuries were the result of the respondent being attacked and beaten up while he was in a rickshaw with a friend (I.J. at 20, 21; Tr. at 263, 264). The Immigration Judge found this completely undermined the respondent's testimony, because the rickshaw incident involved an explosion and it happened in of 1991 (l.J. at 21 ).

We find no clear error in the Immigration Judge's adverse credibility finding. See 8 C.F.R. § !003.l(d)(3)(i). We find it unnecessary to determine whether the respondent would have established eligibility for asylum and withholding of deportation had his testimony been credible. 1 Although the respondent also requested protection under the Convention Against Torture, the respondent has provided insufficient evidence, given his lack of credibility, to suggest that he was tortured in the past in Bangladesh or that any government official in Bangladesh would either torture him upon his return or acquiesce in his torture by others.

On appeal, the respondent seeks a discretionary grant of humanitarian asylum. The respondent correctly notes that the Immigration Judge did not consider this form of relief, but the adverse credibility finding precludes this relief, which is in any event available only to aliens who have suffered past persecution, which is not the case here. See 8 C.F.R. §1208.13(b)(l)(iii). The respondent also seeks to have this matter remanded to allow him to apply for Deferred Action for Parental Accountability (DAPA), when it becomes available. We note, however, that

1 The Immigration Judge observed that the respondent's political party is currently in power (I.J. at 24).

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. . • •

DAP A is a program over which the Board and Immigration Judges lack jurisdiction, and the request to remand will be denied. On appeal, the respondent contends that he is eligible for suspension of deportation and that the Board should remand the record for consideration of the merits of this application. We note, however, that at the hearing, the respondent, through prior counsel, conceded proper service of the Order to Show Cause, admitted the allegations, conceded deportability and failed to request the relief of suspension of deportation, thereby waiving it (Tr. at 4, 5, 9-11, 340). The respondent did not file an application for suspension of deportation, and that relief was abandoned. Moreover, the respondent has not alleged ineffective assistance of counsel. On appeal, the respondent also seeks to submit additional material. We note that the Board is an appellate body whose function is to review, not to create a record. See Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984); 8 C.F.R. § 1003.31. As such, our review is limited to the record as it was constituted before the Immigration Judge, and it would be inappropriate for us to accept any new evidence submitted on appeal.

On appeal, the respondent argues that the Immigration Judge erroneously denied his application for voluntary departure. We agree with the respondent that an adverse credibility finding is not sufficient to find the respondent lacked good moral character. At the hearing, the Immigration Judge qualified the respondent for voluntary departure and we will remand the record for the Immigration Judge to provide the respondent with the required voluntary departure advisals (Tr. at 335, 336). See Matter of Gamero, 25 I&N Dec. 164 (BIA 2010). Accordingly, the following order will be entered.

ORDER: The appeal from the denial of asylum, withholding of deportation, and protection under the Convention Against Torture is dismissed, ai1d the record is remanded.

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JAN - 8 2016 - Amoachi & Johnson, Attorneys at Law, PLLC

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